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From the yarboc Library
lEUini-SIAIIiflRDaVNKHtVtgVERSnY
y
■•-^
State Trials.
VOL. XX.
COMPLETE COLLECTION
• •!.•» « •? J r,
• « s • a a «
. • --. . ^ . • .-OF : • • • • - -• : !•
State
AND
PROCEEDINGS FOR HIGH TREASON AND 01
CRIMES AND MISDEMEANORS
FROM THE
EARLIEST PERIOD TO THE PRESENT tiME,
WITH XOTES AKD OTHER ILLUSTRATIO
COMPILED BY
T. B. HOWELL, Esq. F.R.S. P.S.A.
VOL. XX.
A.D. 1771—1777.
LONDON:
PRINTED BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET :
FORU)NOMAN, HUROT, REE8, ORME, & BROWN; J.RICHARDSON; BLACK,
PARRY, & CO.; £. JEFFERY ; J. HATCHARD; £. LLOYD; BUDD 6i
CALKIN; J. FAULDER; J. BOOKER; CRADOCK & JOY; R. H. EYANi;
J. BOOTH ; AND T. C. HANSARD.
1814.
* • •
t'^'-.^.-v^
.^iL
ADVERTISEMENT,
IN this Volume the Cases reported in the last FoUo Mdiiion
rftke State Trials are brought to a termination; the Case
•/ Home, p. 651^ being the last contained in that Collection.
After which commences the New Series of Proceedings, con^
Hmung that Edition to the present time.
In order to render the present Work more applicable to
Hme Law Books in which references are made to the FoUq
MUkm, a Table of Paralisl Hmfhrmkcm, exhibiting at
jtrtl nght the Pages in the present Edition corresponding
wilk those of the Folio (fries, is now in compilation, and will be
fublished wUh the next Volume.
Fm. 1814.
»-. • «
TABLE OF CONTENTS
• • •
TO
VOLUME XX.
^u
REIGN OP KING GEORGE THE THIRD.
i&. The Case of JAMES SOMMERSETT, a Negro, on a Habeas
Corpus, A. D. 1771-1772 1
Addenda to this Case • « 1369
H9. Proceedings in an Action by Mr. ANTHONY FABRIQAS, against
Lieutenant-General MOSTYN, Governor of Minorca, for False
Imprisonment afad Banishment, a. d. 1773-1774 » 88
KO. The Case of the Inland of Grenada ; in relation to the Pajrment of
Four and one-half in the Hundred of Goods exported therefrom ;
between ALEXANDER CAMPBELL, esq. Plaintiff, and WIL-
LIAM HALL, esq. Defendant, a.d. 1774 239
Addenda to this Case •; 1387
Sbl. The Trial of ELIZABETH, calling herself Duchess Dowager of
KINGSTON, for Bigamy, a. d. 177(S 355
SS2. Proceedings against JOHN HORNE, Clerk, on an Information in
the King 6-Bench by the Attorney-General, for a Libel, a. d. 1777 651
Addenda to this Case • • 13S9
*«* This is ike concluding Article of the Folio Edition.
COMMENCEMENT OF THE NEW- SERIES.
Si The Trial of JOHN ALMON, Bookseller, upon an Information,
filed Ex-Officio, by William De Grey, esq. his Majesty's Attor-
ney-General, for selling Junius's Letter to the King, a. d. 1770... 803
5M. The Trial of JOHN MILLER, Printer, before Lord Mansfield,
and a Special Jury of Citizens of London, at Guildhall, for re-
prioting Junius's Letter to the King, in the London Evening Post,
of the 19th of December, 1769, a. d. 1770 870
TABLE OF CONTENTS.
Page
Kb. The Caie of HENRY SAMPSON WOODFAIX,^ an InTor-
matioD, filed bj the Attomej-General, for publishiiig Junius'i
Letter to the King, ▲. d. 1770 895
Sb6. The Trial of Maha Rajah NUNDOCOMAR, Bahader, for Forgery.
At Calcutta, in the Fkrovince of Bengal, a. d. 1775 • 9M
567. The Trial of JOSEPH FOWKE, FRANCIS FOWKE, Maha
lajrfi NUNDOCOMAB, aad ROT lADA CHURN, for a
Conspin^ against Warren Hastings, esq. Governor-General of
die Presidency of Fort ^TtHliam in BengaL At Calcutta or Fort
William in Bengal aforesaid, a. d. 1775 • • 1078
.£58. The Trial of JOSEPH FOWKE, Maha Rajah NUNDOCOMAR,
and ROT RADA CHURN, for a Conspiracy agakist Richard
Barwell, esq. one of the MenAers of the Simreme Council for the
Province of UengaL At Calcutta or Fort Wi&iam, in Bengal
afinesaid, a. d. 1775 1186
fl59. The Trials on the Informations whidb, in punuance of an Order of
the House of Commons, were filed by his M^esty's Attorney
General against RICHARD SMITH and THOMAS BRAND
HOLLIS, esqrs. for .having been (haSlij of notorioas Bribery, . **
and thereby procuring themselves to be elected and returned
Burgesses to serve in Pariiament for the Borough of Rindon,
A. D. 1776 .• 1288 ;
•
MO. The Trial of ao ActiM brought by STEPHEN S AYRE» esq.
against the Right Hon. WILLIAM HENRT Earl of ROCH-
FORD, one of his Majesty's most Hon. Privy Council, and
tberetofoie one of hn Majea^'s Princ^al Seeretaries of State, for
False Imprisonment, a.o. 1776.«. 1286
661. The Trial of JAMES HILL, otherwise JAMES HINDE, other-
wise JAMES ACTZEN or AITKEN, (known also by the
name of John the Painter) for feloniously, wilfully, and malici«
ously setting Fire to the Rope House in hn Majesty's Dock Yard
at Portsmouth, A. D. 1777 «.....••...• ^..... 1318
■ \
A COMPLETE COLLECTION
OF
STATE TRIALS,
548. The Case of Jahes Somhersctt, a Negro, on a Habeas
Corpus,* KingVBench : 12 Geouge III. a. d. 1771-72.
Of thia Gate only a Statement of the Pacts,
tnd Mr. HBi^nve's learned Argmnent wen
inMTted ID the former edition of tkis Work.
1 biTe here added the olber Aigumeola, aad
lilt Jud^meut of the Court, from Lofffa Re-
perls, m which is a Note of the Case noder
thcnameof Sammenett againat Stewarl.
0> ibe 3il of December 1771, nffidtTils were
muk k/ Thomaa Walkhn, Elizabeth Cade,
„...._ M__i_._. .1... I a ^ J
* The TCT7 important (natters which thii
OB iarolTcd, Tiz. fir»t, The rigbia over the
pnM «f K negro reaident here, claimed by
MMitr penioo aa the owner of the negro ;
iW. n|jpo9ing such righta to e)Uat, aecoDilly,
Tie uicnt of tbem ; and thirdly. The meaua
•f mfarcing' tbem, were. 1 belieTs, nerer, ex-
apt in this ea»e, made tile lubjecl of a luit at
hw in England. But in Scotland two caaa
of ihi* tort have occurred before the Court ol
Kmiod ; 1, That of Sheildani^aioit Sbeddtn,
• a. IT&6 ; 3, That of Knight agwnat Wed-
4(tli'nni, a. D. 177S— 1778.
or these two cases the followlne reports are
fnnied from the > Dictiooary of Decisions,' lit.
' aare,' *oI. 33, pp. 14,545, e( itq. :
" * NecTO, who hail been boaght in \
fiaia, anil brought to Britain to be tauelit *
trtde, anit who liad been baptized in Britain,
biiinif rUimnl his liberty, againit his master
Rqben Slitd'lan, who had put him on board a
itiip, to carry hioiback to Virginia, llif Liirds
a^'pniain) counsel for t\x negfto, and ordered
BKrnorials, and afterwarila a hearin); in pre
■vriKc, upon the refpeclive cluima of liberty
aul >eriitude by the master and Ibe negro.
>■ But, durintc the hearing in presence, the
•q[ra died ; *o the point wu not dgteriniiied."
VOL. 3U.
mander, lyi ,
Jamaica ; and lord Manstield,aD an apphcation
supported by these sfiidavits, allowed a wrilr
iif Habeas Corpot, direoteil to Mr. Knowlea,
sod re<]uiring bim to return (be body of 8om-
■nenyett before his lotdsbip, witii the cause of
itetainer.
Mr. Rnowlea on the 9th of December pro-
Jnced the body of Sommeraett before lord
MansQeld, and relumed for caase of detainer,
ihat Sommersett was the negro slate of Char
ihat Sommersett was the n^o slaf t
SteuBTt, esq. who bad dehrered E
" Tlie conimaoder of a Tcssrt, in the African
trade, baring ini|iorted a cargo of negroes into
Jamaica, sold Joseph Knight, one of tlieoa, aa
a slave, to Mr. Wedderbum. Kuight was
then a boy, seemingly about twelve or tbirleea
years of age.
" Some time after, Mr. Wedderbum came
orer to Scotland, and brought (his negro aloi^
will) liio), as a personal serrant.
" The negro continued to serf e bim for seve-
ral years, without murmuring, and married ia
the cDuolry. But, afteinardi, prompted to as-
sert bis freedom, he look the resolution of
(earing Mr, Wedtlrrburo's service, who, being
inlbrmed of it, got biih apprehended, on a war-
rant of Ibe Justices of pe:ice. Knight, un hia
eiaminaliuD, acknowledged bis puipose. The
juBlici|f»Hbund ' the petitioner entitled (a
.'■Amglii's services, and. iliat he must continiM
' as before.'
■< Knigiit then appticd to the sheriff of ilie
county, (Perthshire), by jietilion, selling forth,
■ Tbst Mr. Wedderburn iuuistcd on bis con-
■ tinning a personal serranl with him,' iind
prayed the sheriff lo And, ' Tbnl he cannot bo
.... 11. ^f slavery, or compelled
i and lo discbarge Mr.
yelitiifpfr
3]
12 GEORGE III.
The Negro Case.
[4
into Nr. Koowlcs's custody, in order to carry firtnia, and had afterwards brooght him into
bim to Jamaica, and there sell him as a slave. ! Eng^land, whfre he left bis master's service;
Affidavits were also made by Sir. Steuart and j and that his refusinfif to return, was the
two other {rentlemen, to prove that Mr. Stenart j sion of his beings carried onboard Hr. Knowlea'a
had purchased Sommersett as a slave in Vir- ; ship.
** Afler some procedure in this process, the ; in all the ancient nations, and in all the modera
sberiiT found, * That the state of slavery is not European nations, for many at^es. In lonie
* recognized by the Inns of this kingdom, and is ( of them it still remains; and in none of then
* inconsistent with the principles thi^eof ; that j has it been abolished by positive enactments, de-
< the re^rulations in Jamaica, conccrniniif slaves, j clnring it unjust and iilej^al, but gone into dis-
' do not extend to this kin{;^om ; and repelled
* the defender's claim to a perpetual service.'
Mr. Wedderhurn havin{f reclaimed, the sheriff
found, * That perpetual service, without
' wa^res, is slavery ; and therefore adhered.*
** The defender removed the cause into the
court by advocation. The lord ordinary took
it to report, npon informations. Beinj; a ques-
tion of general im|M)rtance, the Court ordered
a hearin(r in presence, and afterwards informa-
tions of new, upon which it was adiised.
«* Pleaded Jor the Master: That be had a
right either to the perpetual service of the
negrro in Ibis country, or to send him back to
tbo plantations from which he was brought.
His claim over the negro, to this extent, was
argued on the tbllowing grounds :
** The productions of the colonies, ever
since they were settled, have been cultivated
by the means of negro slaves imported from
the coast of Africa. The supply ing the colo-
nies with these slaves has become an extensive
trade; without which, the valuable objects of
commerce, now furnished by the plantations,
could not be cultivated. British statutes have
given sanction to this trade, and reco^fnized the
property of the master in such slaves ; lOtli
W. 3, c. 26 ; 5th Geo. 2, c. 7 ; 23J Geo.
9, c. 3.
** The property which, in Jamaica, was es-
tablished m the master over the negro, under
use by degrees, in consequence of many difle-
rent causes. Though, therefore, the maniei-
pal law of this country does not now admit of
this state of slavery in the persons of citiacMb
yet, where for^gners, in that state, are broogfit
into the conntry , the right of their masters ofW
them ought not to lie annihilated.
*' In this case, the master is not insisting §k
the exercise of any n'cforous |)owef8. He o^f.
demands, that he sbail be intiiled to the peiso*
nal services of the negro, in this country, dar-
ing life. His right to this extent, et lemt, k ,
not immoral or unjust ; nor is it even icfio-
bated by the municipal law of this coonlry.
A person may bind himself to a service for life;
Ersk. Inst, hi! l,t. 7, § 62.
" But, in the last place, if this is denied, Ihs .
master roust, at least, be permitted to ooBfd
the negro to return to the plantations, firM
whence he was brought; otherwise he is ]Mf
tirely forfeited of his right.
" Some cases from the English lav-boohs >
were adduced to show, tbat, in Englsnd, ths
master's right of property in his negro remsiH -:
after be is brought into that country ; BaM
contra Penny, 1677 ; Keble's Rep, p. S|
p. 785. Gilfy contra Cleves; 5tli WUEmi ,
and Mary, lord Unymond, Rep. 5, p. I4lf% i
and the opinion of two very erament UwyoH| i
in the year 1729, sir Philip Vorke, then aUsi^ '^
ney-general, and !\Ir. Talbot, solicitor- geosral^ ;.
in these words : * >Ve are of opiniooi that IS i
* slave, by coming from the West-IndiiB^ '
* either with or nithout his master, to
these statutes, and the municipal law there,
cannot he lost by a mere change of place. On
Erinciples of equity, rights acquiretl under the
iws of foreign countries are supported and I * Britain or Ireland, doth not become free ;
inforced by the courts of law here. A right of * that his master's property or right in I
property will be sustained in every qountry * not thereby determineil or varied ; and
where the subject of it may come. 'The status * tisin doth ni»t bestow freedom on bim,
of |)ersi>ns attend them wherever they go ; | ' make any altenuion in his temporal cood
Huber, hb. 1, t. 3, c. 12. ! * in these kingdoms. U'e are aJso of oninini,
*' The law of the colonies is not to be con- | * that the master may legally compel nia H
sidered as unjust, in authorizing this coudition ' return to the plantations.'
of slavery. The statutes which encourage the " Anstceredjhr the Negro : The only litlaaB
African trade show, that the lecislature does which any right of dominion is claiioed Ofsr
not look on it in that light. The state of ' this African, is the institution of the roaaidpal
slavery is not contrary to the law of nations. , law of Jamaica, which authoruEea Uieslavwy
IVriters upon that law have enumerated seve- • of Africans brought into that island, TJuitlr
ral just and lawful origins of slavery ; such as ■ that law, this negro, a child when brought iola
contract, conquest in a just war, and punish- ; Jamaica, while he remained there, was wtk^
ment of crimes. In cases where slavery is au- fjected to the unjust dominion which itgifcs
thorizinl by the laws of Jamaica, it must be pre- ! over these foreigners ; but the municipal law
snnied to* have proceeded on a lawful origin, of the colonies has no authority in thb eountryu
The municipal law of no country will be pre- ; On grounds of equity, the Coon, in soow
sunied unjust. ! cases, gives eflecl to the laws of ether coMh
** A state of slavery has been universally re- ' tries ; but the law of Jamaica, in this instaKib
Mived in the practice of natioDS, It took place will not be supported by the Court ; bscamtt
i
5]
The Negro' Case.
A. D. 1771.
[6
Laid Mam$field chniioff to refer the matlar
tD Ike teermiiMtion of ttie court of King's-
bdck, SMnmeroett wiib sureties was bi>uoci in
nisaiiee for his appearsDce there on the
[day of the next Hilary term ; and his
■ifyHpiPt to tlie first principles of morality
•* SabordinattoD, to a certain extent, is ne*
tmmy ; bat there are certain bounds, beyond
vbidif if any institution, subjecting one indi-
fital to anolher, should go, the injustice and
mlity of It cannot admit of a doubt,
is tlie institution of slavery, depriving
of the most essential rights that attend
ezisieace, and which are of a nature that
not of any equivalent to be ^iven for
ibca. The most express consent, given in a
ffdonlary contract, cannot authoriie tne assum-
m^ of tliese rights, or bind the consenting party
Is sidbmit to the condition of a slave. A stipu-
of tbat kind affords intrinsic evidence of
judue advantage taken, and is therefore
It to Toid the contract.
** Bat, although it were justifiable to admit
if a sbvery proceeding on a title of contract,
t, or of punishment, the law of Ja-
would not be the less unjust. In sub-
the Africans to slavery, that law re-
Mcs no title under any of these grounds.
The drenmstancc, that the negroes are brought
iats Jamaica, is all that is requisite to fix on
IbiB indiacrimiuately the condition of slavery.
It iR, therefore, a slavery established on force
aad osdrpntion alone, which no writer on the
k« of nations has vindicated as a justifiable
of slavery.
** If the law of Jamaica had made any dis-
BCtisB, or required any title to the slavery of
1 ifiian, this negro would never have been
by it to that state. Being a child
he was brought into Jamaica, he could
into DO contract, commit no crime, and
cannot give a right to kill or enslave
cwUrcn.
" The means by which those who carried
dlii child from his own country got him into
Ihcir bands, cannot be known ; because the
bv of Jamaica makes no inquiry into that cir-
coBsiance. But, whether he was ensnared,
ar bought from his |>areDts, the iniquity is the
Siow. — That a state of slavery has been ad -
nitled of in many nations, does not render it
ins anjust. Child -murder, and other crimes
if a deep dye, have been auihorlbed by the
lavs of different states. Tyranny, and all
sms of oppression, might be vindicated on the
Mine grounds. — iNeiiher can the advantages
pnicured to this country, by the slavery of ihe
Mfrues, be heai kened to, aa any argument in
tkii qnention, as to the justice or it. Oppres-
■Mo and iniquity are not palliated by the gain
sodadvautage acquired to theauthont of them.
boi ibe ex|iedieucy of the institution, even for
Ike subjects of Great Britain, is much doubted
•f by those who are best acquainted with the
tttta of the colonies ; and soma culightened
lordship allowed till that day for settling the
form of the return to the Halieas Corpus. Ac-
cordingly on tbat day Sommersett appeared in
the court of King's- bench, and then the follow-
ing return was read :
men of modern times have thought, that augar
and tobacco might be cultivated without tht
slavery of negroes.
*' The dominion, therefore, given by the
law of Jamaica over the pui-suer, a foreigner
there, being unjust, can receive no aid from
the lawa of this country. The modificatiun
proposed of this claim of alavery, makes no
difierence on the merits of the question. It is
plain, that, to give the defender any right over
the pursuer, the pobitive law of Jamaica muat
always be resorted to ; consequently, the ques-
tion recurs, Whether that law ought to be en-
forced beyond its territory ? But a service for
life, without wages, is, in fact, slavery. The
law of Scotland would not support a voluntary
contract in these terms ; and, even where wages
are stipulated, such a contract has been voided
by the Court ; Allan and Mearns contra Skene
and Burnet, No. 5, p. 9454, voce Pactum
lllicitum.
'* The answer was given to the other claim,
of sending the negro out of this country, with-
out his consent, tbat it supposes the (fominion
given over the pursuer by the law of Jamaica
to be just. The negro is likewise protected
against this by the statute 1701, c. 6, which
expressly prohibits the carrying aiiy persons
out of the kingdom without their consent.
The words are general, and apply to all per-
sons witlyn the realm.
** In support of this argument for the negro,
authorities of French writers were adduced, to
show, that formerly, by the lavis of France,
negroes brought into that couutry from tlie
plantations became free. This was their law,
until lately, that, by special edicts, some alter-
ations were made u|H)n it; Denissrt, tom. 3,
V. Negro. On the law of England, several
cases were mentioned, in which different
judges had expressed opinions, that a negro
coming into England is free there ; 1 Salk.
666, Hmhh contra Brown and Cooper ; Shanley
contra Nalvey, in Chancery 1762 ; Har-
grave's Arg. p. 58.
" But the late case of Sommersett, the ne-
gro, decided in the Kin^'M-beuch, in the year
1772, was chiefly relied on, and said to be in
point; at least upon this question. Whether
the negro could be sent out of England ?
*' The Court were of opinion, that the do-
minion assumed over thisi negro, under the law
of Jamaica, being unjust, could not be sup-
ported in tliis country to any extent : that,
therefore, the defender had no right to tlie
negro's service for any space of time, nor to
send him out of the country against his con-
sent : that the negro was likewise protected
under the act 1701, c. 6. [The * Act for pre-
* venting wrongous imprisonment, and u{f:iin*(t
* undue delays in Trials,' more particularly
7]
12 GEORGE III.
The Negro Case,
t»
*< I, Jolin Knowleff, cominfuider of the Tessel
calleil the Ann aud Blary in Uic writ hereunto
annexed, do inust huiubly certify and return to
our present mo^t serene so?ereign the king^ ; that
mentiuued l;elow] from being sent out of the
country a^aini«t his cousenL^The judgmeuts
of the dheriff were approved of, and the Court
* reiuiUed tlie cause simpUciterJ "
I have been favoured i« iili the use of six
* Memorials' or ' Informations,' which in the
course of these tHo litigations were delivered
into the Court of Session. Five of them appear
to have been iirepared by men of very high
eminence in their profession, one for Sbeddan
the negro by air David Dairy mple, aiWr*
wanls a jnilge with the title of lord Hailes ;
two ibr Knight the negro, by Mr. M'Lourin,
aAer wards lord Dreghom, andMr.Maconochie,
now lord Mcadonbank, and two for Wedder-
burn (Knight's maj*ter), by Mr. Ferguson, af-
terwards lord Pitfonr, and Mr. Cnllen, after-
wards lord Culleo, res|)ective)y : they display
a copiousness and variety of curious learning,
ingenious reasoning, and acute argumentation,
intimately connected with the case now be*
fore us.
With respect to < Memorials' or * Informa-
tions,' in causes depending in the Court of Ses-
sion, aud to the general course of proceeding
in that court, see the Edinburgh Review for
January J 807. For the alterations which in
the vear 1808 were made in the constitution
of that court, see stat. 48 G. 3. c. 151.
Mr. Barrington, in his Observations on stat. 1
fitch. 2, (note [j/] in the third edition) mentioned
tliat ''many of the labourers in the salt- works
and collieries in Scotland still continue * glebce
adscriptitii' and cannot be hired without the pro-
prietor's consent." And as to this he referred to
a case in the Dictionary of Decisions, vol. 1,
I). 812. I know not what case that was. In
Morison*s Dictionary of Decisions there are
under title Coalier twelve cases, in all of which
the Ber\ ile condition of the class is recognised.
In the Memorials which were presented in
the case of Knight v. Wcdderburn, tho con-
dition of the coalliers and suiters of Scotland
was considered. 1 will here insert w hat was
said of it by lord Me.aduwbank and lord Pitfour.
*' The defender," observed the first of those
learned persons, ** has mentioned the situation
of coalliers and salteiti as an evidence, that the
law of Scotland is not repugnant to slavery.
It has bren already shown, that although vil-
lenage still existed, although this high court
would even now record an acknowledgment of
vtlicnage, and alihon^h other kinds of slavery
were adopted by the* laws of this country, yet
that the common taw could not be understood
to favour the defender's claim. As long as the
common law acknowledges the law of nature to
be its great principal and rule, so long must it
reject a claim to a right of property iu a man,
or in his labour and industry, founded iu his
being born of a captivt or a criminali or in hit
at the time herein after-mentioned of bringing
the said J ameaSomoiersett from Africa, and long
before, there*wrcre, and from thence hitherto
there have been, and still are great nambera ^
being seized on violently by a third person, and
sold to the claimant, it has, hqwever, been
urged, that coalliers and salters arc living prooiii
of the former prevalence of villenage : it is,
therefore, not unnecessary to bestow a ftew oIh
servations on their situation ; the use of pit-
coal is of so late invention that villenage must,
at any rate, have disappeared in Scotland long
before the working of coal could have become
a profession. Purehas (in vol. 3, p. 88, of hit
collection) giving an account of Marco Paolo's
travels, has the follow lug curious passage ex-
tracted from them : * Throughout the whole
* province of Katai (China), certain black
* stones are digged out of the mountains,
' which, j)ut into the fire, burn like wood, and
' being kmdied, preserve fire a long time : aa
* if they be kindled in the evening, they keep
* quick fire all the night ; and many use thoae
* atones, because, that though they have store
*• of wood yet there is such frequent uae of
* stones and leathes thrice every week that the
* wood would not serve.' The same observa-
tion is transcribed into the Histoire G^n^alede *
Voyages, torn. 9, p. 366. It was one of the
circumstances, which, at the publication of
Paolo's travels, was considered as a proof that
they were fabulous. There is a passage in
JEneas Sylvius' (afterwards Pius 3.) account of
Europe, which shows more directly, that the
use of pit-coal must have been very rare and
very inconsiderable in his time even in Soot-
land. Treating of Scothind, he observes, that
he was here (as a iegnte) in the time of Ja-
cobus quadratus, and enquired about a roira«
culous tree, which had been said to grow in
Scotland : He adds, * De qn& re cum audivimua
* investigaremus [soinorig.]didicimusmiracula
' semper remotiiis fugere,famoiiamquearboreu
< non in S(M>tift, sedT apud Orcades inveniris
* Illud tamen in Scotid miraculum represen-
' tatum est ; nam pauperea pen^ uudoa ad
' tempb mendicantes acceptis lapidibuseleemo-
* syniB gratis datis latos abiisse conspeximus :
* id genus lapidis, sive sulphured sive ali4
< pingui materia, pro ligno, quo regie nuda est,
* comburitur.' it is plain, from this account, thai
coals muat have been ifery rare iu Scotland.
It otherwise would have k!een quite absurd to
take notice of them only as used by beggara,
Beskles, he observes, that they were only used
wliere the country was barren of wood ; and
it is well known, that Scotland was, durincf
the reigns of the Jameses, very much covered
with it ; so there could be very little occasion
for coals. On the other hand, as there are re-
gular records extant, from the days of James
1, it is impossible that villenage could then
have existed, without sufficient evidence con*
cerning it appearing in the acta of parliaroentv
charters, transfers of prapertv, and various
deeds anxNig indivklMisy vkisk ate bawM
•' Xhe Nfgro Case.
.^ kitM m A/ru-a i aoj that (luring all ihe
^A ft.-- .ii'l Xbtif hvlli been, hikI slill is •
tn« .rt.-'l <m ky bU mijttiy's Bubjeuls,
|r<a*>^ !• bu tuBJeity'i colonies or phtii-
* u iH lilt ihenrur* plain, (bat llie pfii*
pm J iiijlliias tliiJ uul comiueiKe curly
«^ lo lute M:cei*e<l tlie rviuuiiia of tl>'e
W9 nileiiis. Tl>e cireurosliiiCffs of a coal •
• 4**«c iuilicatc a virjr tlitTerrnt oiigin.
*(^tfvn >c*> ihM liura adttriptiSii. A coal
to*«a profeaaion whicti iaTuliialarily eni-
Ihs^ u>J. Iikr oilier priHviiitiuna, is regulilcil
lf)*r«coUT laira. Hbicli we more Or leu
*M. anxiliD^ AS It"- iolerra ut' the public
a^^t III rv(i>ire. TlivMatjeaofa coallicr.
•iMh uI lalmurera in any ollirr (irolvsginii,
.jaij iu Duurif excluKvf!, aie liightr ihiin
:3ia i>iirL.iiien receive, lit arqiiirei pro-
-T-, Hd irMDstnita it; wid bas lt(«D tbuiid,
- « E»c of RutherglM, (l->L-iilea SO Fe-
ksfj If*7, iniiileil, as well %s toy oilier
ll^«.(al<B> coansellir ol a burgli ; Uv mim,
i* i^ul rratun. be capable ol' being rieulcil
■1^ or parliament. Thesi> purtiuulars
bwai ctiilmcp, ilial tite condition uf a
I ■« )>ertecdy di&renl I'roni tliHl of a >il-
Tlir art ol wurltilig coal auccesst'nlty
9 iitnig practice lo allaio, and is tirriu-
Ibe bcaUb ul' tliute wlio lire Dot early
It WM, iberefure, extremely
works ttcie beuun to lie set
lb« pniprwiiin UioulJ, in return
_ ^. waives ilifv gave ihe workuien,
Hlfa> boiuiil to continue iu their ser«ice
^it^rte"" «l' y»'»rs, or forlite) accord-
^•eBiid, tlial it was at fir«l ciiatomary to
%vli bouilft fi'om coallien ; Htiil, it it
h^tttsi tlie practice coniinued arier tbe in-
^Mn of parhaiueni bad ■upeneiled tbe
'IhBe'ilNKTvalians.tbe^urtuerliiimbly up-
M«i)t>, (iifficicitU^ uxpUiu any ibiujf parii-
nriB ibotaieol ooallirra. la tbe iiifuncy
*^ni<nticnl inifli are apt tu ailiipl expe-
na lar inawHifc tbe obtlruciinos it meets
^ - ' oiUrt Mils «bicli lliry IVfI, but tbe
L aBcLiual rcmediti uf wlucli ibey itu
~ ' ' I'bui inewpurations and
oux lituii, and uu ib« wlier,
Ml tbp airiulieni cif incorpomliont
' lis liue (uij^nated, In ibe
. tery natural lo seek a curb
orrapiiciouonessof coalliam,
kiaU uaifM, like ibnw: uf many other
I af tioHiiueii, disposed ibem m idlfnera,
- ^i, «v affiicaui^e. AH rettuliiiuos, huw-
-. Irwmd wiiit such liews, are Btideiitly
^iWTvial, aail uever can be construed na
T hraahng liberty ur ulavery. any more
tbe •<• uf iiavij^atiuni or any otbcr lbloi[
' jc laaw iMIura. It Diii;bl Iw pruvd, ibal
«a» a tlitf n iiiii ihe same princi|ile
. The acts 163T, c. 61, and I&ST,
M IIm Mher, iIm ci
nibe '
n pleBjtn W in
A. D. 1771. HO
(UionlDrVirg-inin and Jamaica in America, aoil
Otber coloiiJM ■ml planiativns belongint; lo bis
iiiajpsly in Aiiierit:a, for ibe ueccaMry aupply-
in|r ot'ihealiircsaid colonies suil plaataliooa witk
(lalul«s wvie ever urijed as itittiiulit* of ilaTvry,
TliF same obw rtalioa* are in ijvneral so appb-
c~ble lo tlie Mule of sullen, liul ii is uuneccs-
sarv to consider il."
On Uie pail of tbe defecder it wot arened lijr
Mr. Fer|[Uiaii (lord Pit four,) " Tliere still exists
in this country h species of periwiuil serritude,
(irxbably llie reuiaiiiH of the oriuiiml ' aiiscrip-
' lilii glebte,' ur villeins, wbiah is supparle<l by
Inle sialuies, nuil by daily pmclice. via. TbM
which takes pluce with regard lo the caallier*
and sailer*, where, from the »iii((le cireuin-
siance of enlerini; to work afier puberly, tliej
are bound In iwrpelual service, and sold along
with the wurlis ; and indeed, in our law, ibcr*
are several nlber examplea of persons being
bound ('> servitude during tbeir lives. Tbe act
of parhameAl 1597. cap. J7S, eiiacU, ' That
slark beggars and their bairn* be employed in
common works, and Jieir serrice, mentioned
ill the act uf iiarliameal 1S79, to be prurogala
during ibeir liletimes.' And, ttilboul going
furiher, it is Ihe case with every soldier aud
sailor. tb« former of ivhoiii i* shnt, if lie en-
deatuurs to niube bis escape al any period of
his life, by express law ; and tlie lador is sub-
jected, during the same sjiace by a practice
universally admitted, to be leiied by force, and
Lent agninst liis uill lo the remotesi corners of
tbe world.
" Tbe pursuer is pleased to nr^iic, thai the
coalliers and sattets ate tiut a remains of *jl-
lenage ; and bis arfriiment for tbis is. ibat llie
use of cual in Kcoilaad is sn late a disuovery,
thai it must have taken place lonir after villen-
age disappeared : and tu ui'uve thii, he cites a
passage from Marco Paolo, and annllier from
£iiGa« Sylvius ; from which it would appear,
Ihat these aulbors bad been unncquainleJ with
that mineral, till the former saw it in China,
and the UitPr in Scotland, And ftbe pursucf
adds,) £n«iis Sylrius observes, that coal waa
only Uiied in Scotland where it was barren of
wudd ; and w it is well known ihst, during the
reiifii of the Jameses, ticoliund wurery inuoU
covered wiih wood, there could be very little
>■ Thii circuiiiKlance seems lo he tillle con-
neclol wilb Ihe present i|Uestion ; but the pur-
suer's ui-iioiueolk niipearlo bnve no Tendency to
prove tii..l lliL- stiile of the e<ialliert in ScntlaDd
u mil D lUiiliou^Hrin of lite ancient tilleuage.
By tbe churl, r ubnre reciled. that instilntion is
irucod dowr. to the year 1368 ; and in all pruba-
biliiy it continued a cuniiderable time longer.
Marco Paolo tveut in China abnut 100 year*
before Ibal ; so turrly no inlereore can be
drawn from ibe llalitns being unacquiiinled
wilh cual iu the year tSTO, that ibis mineral
was not diacoveied iu tJcotland before the year
1368.
11] 12 GEORGE III.
negrro slaves ; ind that negro slaves, brought
in the course of the said trade from Africa to
Virginia and Jamaica aforesaid, and the said
other colonies and plantations in America, by
The Negro Case.
p«
* JEneas Sylvius vras in Scotland in. James
the Ist's time. The defendtir does not know if
the pursuer means by the expression of Ja-
cobus quadratus to insinuate that it was in
James tne 4th's time ; but if he does so, it's a
mistake, for £neas Sylvius died pope in the
5th year of James 3, viz. S3 years before
James 4 succeeded; and tberr is no doubt
that his joum^ to Scotland was in James the
Ist's time, probably about the year 1430. He
then describes coal to have been in comoion
use in Scotland ; and it would appear very odd
if there had been no coal- pits in Scotland 60
years before that, to which the charter above
recited brings down the existence of villeins or
nativi.
" The quotation therefore from JSneas Syl-
vius is a proof of the direct contrary of what
the pursuer endeavours to infer from it.
** The circumstance of two Italians being
surprised at seeing pit -coal affords no pre-
auniption that it had not been used for many
centuries in Scotland. It happens every day,
that Englishmen are not believed in that coun-
try, when they describe our coal to them even
at present
'* The defender does not know what the pur-
suer means by asserting, that it is well known,
Scotland was very much covered with wood
during the reignb of the Jameses. As iBneas
Sylvius, who was an eye-witness, declares,
that in the time of James 1, it was perfectly
bare of wood ; and it is exceedingly probable,
that the immemorial use of pit-coal before that
period, had induced the inhabitants to cut down
all the wood, without leaving or providing suf-
ficiently for that kind of fuel.
'* It is needless to enter, with the pursuer,
into the disquisition, whether the state of coal-
liers be a severe kind of slavery or not ; as it is
certainly much more so thau that to which the
defender claims to reduce him."
It is perhaps worthy of notice in this place,
that though the memorial of Mr. Maconochie
(lord Meadowbauk) bears date April S5, 1775,
and that of Mr. I<erguson (lord Pitfour) bears
date July 4, 1775, no notice is taken of the
statute 15 Geo. 3, c. 28, by which aOer recit-
ing that by the statute law' of Scotlaml, as ex-
plained by the courts of law there, many col-
liers and coal bearers, and salters, are in a state
of slavery or bondage, bound to the collieries
and salt works, where they work for life, trans-
ferable with the collieries and salt works, when
their orifj^inal masters have no farther use for
them, it is enacted, that colliers, coal bearers,
and salters, shall not be bound to any colliery
or salt work, or to the owner thereof, in any
way or manner different from what is per-
mitted by tbe law of Scotland, with regard to
■crvants and labourers.
Tbb sutute, it sppetiw, by the Lords' Joor*
the laws of Virginia and Jamaica aforesaid and
the said other colonies and plantatMMis in Ame-
rica, during all the time aforesaid, have been,
and are saleable and sold as goods and chattels,
nal, was passed on the S3d day of May, 1775.
After which, it seems (see Mr. Benet's account
of Dudingston, in the 18th vol.of sir John Sin-
clair's Statistical Account of Scotlabd, p. 370,)
that the coal masters strove to insure the de-
pendenceof their coalliers, and consequently tbe
perpetuity of their services, by seducing them
mto their debt: to remedy which, by stat. 39
Geo. 3, c. 50, among other provisions respect-
ing colliers in Scotland, it was enacted, « That
no action shall be competent for ^oney ad-
vanced by, or on behalf of coal owners or
lessees to colliers, except for snp|K>rt of their
families in case of sickness,' in which case a
specific mode of procedure is provided.
In the negro case in France, which, under
the title of ' La Libert^ reclam^e par un n^re
centre son maitre qui I'a ameoi en France,' is
reported in tbe ISlh vol. of * Lea Causes G^*
l^bres,' See, p. 492, edit, of 1747, and which I
apprehend was determined in the year 1738, or
soon afterwards, the questions before the Court
appear to have been, 1st, Whether the party
claiming the negro was such a person, as, by '
the French king's edict of October 1716, was
permitted,under certain formally prescribe<l con-
ditions, to bring negro slaves from the French
West Indian colonies into France, and to retain
them there : and Sdly, Whether he had per-
formed those conditions; with respect to which
it was provided in the edict, that, " faute par
lea m&itres des esciaves d'observer les forma-
lity pr^rites par les pr6ced^ns articles, let
dits esciaves seront libres, eS ne pourront dtre
reclames." For though M. le Clerc, Pro-
cureur du Roi, did indeed mention, that nei-
ther the .edict of March 1685, nor that of Oc-
tober 1716, had been registered in the parlia-
ment of Paris, or transmitte<l to the proper
officer of the court of admiralty, yet it very
cleariy appears, that he did not lay much stress
on these topics.
But tbe eloquence of M. le Clerc and the
ofher advocates who argued the case expa-
tiated far beyond the narrow limits of the dry
and uninteresting quesiiuns of mere positive
law which I have stated. The powers of their
learning and of their oratory were called forth ia
all their vigour, to describe the character and
narrate the history of slavery, to display its
incongruity with the benevolent doctrines of
Christianity, and above all to impress upoo
their hearers, that slavery was utterly and ir-
reconcilably opposite to the nature of France
and of Frenchmen, and to the original principles
and established administration of their consti-
tution and government ; insomuch, that to
touch the soil or to inspire the air of Franca
was to be free. Thronghout the arguments
this last position not only was undisputed by
either party, but was by all parties either as-
sumed, or admittedi as the inoootrovertibls as-
13J
ne Negro Can.
A. D. 1771.
[I*
ud «fMi Ibe sale thereof hare become and
bRtt, aad are the slaves and property of the
pmthiri thereof, and hare beea, and are
1 — - I - - ■! 1 •
SfftM of a notorious (act. Yet, at the same
im, A was on all sides propoanded and incul-
oAil, with a dilin^enee and copioasness of repe-
MM, which is not commonly expended upon
tkt owinleDaoce of indisputable truths. I hare
fitraetcd frono the rp|M>rt the followiogf pas-
Hirct, whirh, I heliere, will sufficiently con-
n vhat I bare stated. They may also afford
HBuwineDt, if not instruction, bv exhibiting
the complacency— perhaps I should rather say
the triumph — with which, under the reign of
Lnrii the 15th, the descendants of the an-
ciort Franks could rhapsodise concerning li-
krtr:»
'*II s^est toojours regard^ comme libre,
kfm qu'il a mis le pied en France," p. 495.
** D^ qu*an esclare y*' [se. en France] *< a
■ii ie pied, it y acquiert la liberty," p. 504.
" Vig qn'un esclare est entr6 en France,
i de? ieot hbre,'* p. 504.
** 11 faot conclure que Pesctare est derenu
ftrc,«I^ le premier instant de son arrir^en
Fnoce,'' p. 508.
** L'eotr^e dans la riUe de Paris assure le
Busticu, etdevient I'asile, de la liberty.— « £st'
[k. LntetiaJ * sacro-saocta ciritas, qnie pne-
*Wt emnibns libertatis atrium quoddam, asi-
'Iraaqae immanitatis,' " pp. 511. 526.
^Je ne me propose point ici,de porter la
■sbdre atteinte ao plus pr6;ieux de nos biPiis :
je ae pi^tens point enrier, k I'heorenx climat
^ WNN babitotts, cette pr^rogatire ^minente,
stocMe a la eeule entree en ce royaume," [this
Vhnsetecnrs again in n. 5SS.] *' et oui forme
kfsrele plus assort ae la liberie, Jont nous
/ssSmas nous-m^mes," p. 512.
"Je ne craindrai pas d'arouer arec tons les
ismri, qa*on ne conndtt point d'esclare en
Friaee, ct que si tcH qn'im esclare Stranger a
isii le pied sor notre continent, il est g^tifii
de Is rdiert^," p. 520.
** On ne conndit point d'esclare en France,
ctqoicoMioea mis le pied dans ce royaome, est
ratifi^ de la libert^,'^. 595.
^ Testator Benedictns, * senros, qui Tholo-
* nm aufogerant, urbis ingressu ipso, liberos
'aciosetcires,*'*p. 527.
** Ups maximea si pr^cienses du droit Fran-
pb accordent k la seule entr<^e dans ce roy-
:arop, au seul air qu'on y respire, le droit de
b lihert^, ledon de la franchise ; j'ai adopts ces
aaxunes, je leur ai rendu tout IMiommage,
^'elle« 4§xigent des coeurs rraiment Frau*
joii," p. 532.
'* La France se fait gloire de comrouniquer
* Mr. Dnrke (Reflections on the ReroUition
n Fnoce, See. 4th ed. p. 93) remarks, that *< it
*ai is the most patient period of Roman ser-
*jftDde that tbemes of tyrannicide made the or-
diaary exercise of boys at school — * ciim pe-
ns* iceoa classis nnmerosa tyrannos.' " The
&as is in Jartnalt Sat 7, t. 151.
saleable and sold by the proprietors thereof aa
goods and chattels. And I do further certify
and return to our said lord the king, that Jame«
le beau privilege d'affrancbisseroent k tous les
esclares, lorsqu'ils entrent dans ce climat hen-
reux, dont le seul nom r^paod de toute part la
bonne odeur de la liberte," p. 539.
"II n'est point d'esclare en France ;.DOf
constitutions, nos usages ^tendent la farenr de
la liberie k tous les hommes en g<Sn^ral qui
Pbabitent," p. 539.
** II ne peot y avoir d 'esclares dans ce roy-
aume, il soffit m6me d'y etre eubli, ou d'r
faire sa residence, pour acqu^rir le bien pr&
cieux de la lilwrt^," p. 544.
'* Nos privileges ont elfar.^ jusqu' ^ I'id^ de
I'esclarage en France,'* p. 546.
" II n'y a en France aucuns esclares ; et
la contume y est telle, que non seulement les
Francois, mais aussi les etrangers, prenant port
en France, et criant France et Liberli, sont
hors de la puissance de celui, qui la poss^doit,**
p. 549.
*' La France, m^re de liberty, na permet au-
cuns esclares," p. 549.
** Les esclares ont en France le pririlbge de
se remettre en possession de leur libeni, an
moment qu'ils sont entr^s dans les terres de ce
royaume," p. 551.
*' De terns immemorial Pesclarage n'a
point lieu en France, et I 'esclare ^tranerer de-
rient libre, aussitdt qu'il y aborde," p. 551.
" Donter si en France un homme est libre,
si un esclare acquiert sa liberty par son entree
en France, c'est attaquer I'autorit^ aoureraine
de nos rois, et faire injure ^ la nation,*' p. 498.
To these may be added the following mors
early authority :
'* Toutes pcrsonnes sont franches en ce roy-
aume, et sitost qu'un esclare a attoint les
marches diceluv se faisant baptizer, il est af-
franchi." Institutes Coustumi^reS) (published
at Paris in 1679) p. 2, cited by Mr. Barringtoa
in bis Obs. on stat. 1 Rich. 2, where he has col-
lected some curious particulars, relating to slfl-
rery.
Bf . Tribard, who pleaded against the pre-
tensions of the negro, admitted aud maintain*
ed the proposition that there were no slaves in
France, as a general rule ; but contended that
the case of negroes, belonging to French West
Indian colonists, was, by the eilict of 1685^
specifically excepted from its operation.
" Si en France," says he, ** on ne conndit
poiat d'esclares, si la seule arrir^^e dans ca
rovaume, procure la liberty, ce priril^ge cessa
k r^rd oes esclares n^gres Fran9ois : quelle
en est la raison? C'est qu'en France, c'est
que par une loi de la France meme, les esclares
n^gies da nos colonies sont constitu^s dans un
esclarage n^cessaire et autoris^," p. 529.
After noticing an * Arret' of the parliament
of Toulouse, reported by Bodio, he proceeds,
*■ Quel peat 6tra I'effet, quelle peut ^tra Tin*
I5J 12 GEOnCE III.
SomineTieU, in the said writ hercDDto nnn«ei]
named, it a nfCTo, and a niliTe of AtKca ; and
that the uid Jantcs Kommeraelt, tong^ before
the coming of llieuiil nnt to me, to wit, on
n 61itqi]i deux
The Ncgra Case. f 16
tbc IDlb day nf March in the year of oor Lord
waa a ne^ro alart in Africa alnresBid,
and afterwarilB, to nit, on llie satiie day and
y^er lait aforeaniil, being siich negro slave,
duciioD de cet arr6t, r\
aitclea aprii, pour k
<tBl, ]es ta^<^ea ct la piiiissnce de la naliou, » j
ttabli une leriiiuile uCceMnire car cette parlie
de» iujetBduroi?" |i. 531.
Again " Voilii done la teiile induction, uni-
quement pai: rapporl ani firaugera, el aux
a»cla<reade« «irangers," p. S97.
i"'Ituiuiitbe cnnfe«scd tliat llie pleading of SI.
Trihard wa« not >cry cnutincing. Of the style
aud co^«Dcy uf bis nrguTnentation the ful-
loiiinic nbturd faJEc anil despicaUe common
f laces may siifli(.-e as aatnpleH : " Ceux t|ai
iul'oriuue de la guerre amuji^issuil nux vain-
qururs furent appelltii eivlaves, icrci, liien
UMiiisil leraiendo, qu'ii ttrTnuilo," \i. 514.
*' Neijue enim libertas tulior ulta est, qiu^m
Amino serrire bono," |i. UK.
Judgment ira's giieu fur ihc Negro.
Tiie 6'oife A'oiV, as it trMscallcd,ir3san edict
bearing date in Alarcli 1G85, nliicli was Isourd
by Lewit the 14lh. It coiiliiini varioDs regu-
laliqiu rfE|irctiuK llie roniiitinn and Irealntcnt,
the rights and duties of negni sliicii, end freed
MTgroea, and of tlie Kreocli Wett Indian <.-ol»-
nieD.* This ' Code Noir' is citetl in llie plead-
ings ill tlie net^ro case reported in tlie * t'ansea
Ci:lelires ;' but I do niit pTcnre that it at all
COiiceruH that particular easr, except in so far
as it recognizes, nud e.tlabliiJiea the i/(i(uii of
alavery ; iin wbicli aeenunt indi>eil mucli re-
liance was placed on it in itic pli'ailiii;;s Ibrihc
party irliu claimed to be •inneriif thi' lu'gro.
Ill Oclnlwr iriO, li-wis the l.^ilb pnllisht^l
■n edict, * conccrnant Ics niclaves nr'^^icsdcs
eolonifs,' hy wliicli, alter recitin:;, iiiUr alia,
" conim'' nous avons vid infiirmd^, epic plii-
■ienrs lialiilans <lo niM isles de TAnitriquc d^-
rircul enioyer en France <pielques uus de icur*
* In Air. Ilargrave's Arguii-ent in the text,
this eilici n said to have been made in Muy
IGQj. bill ill tlie copy of tlieeilict trliicb ia iii-
tertcd in the 13tli vuluini: uf the " Causes C^-
Ifl>res," the date is tn ice iiieiiiioiied to bu Marcli
1685. Inlliatrntumcihe edict lies n tbe ful-
Inwing lille, " Le Code Noir ou Kdil du Itui
•ervant de r£glement pour le uouTciiiemcut et
radininislrattnndelajiislii'eetikiiolicedcB Isles
Fraii^'«i$es de I'Anicriqnu. et pour la diKcipline
et le cuniincrce des no;:reii el esclaien daiiH le
dil pays." In the preiimbk' tlieobjerla of the
tdict ar« ststed to be " y mainleiiir la dnciplins
tie I'iighse ciitliolii|iie, apusl«h<|ue, el rouiaiiie,
•> y nigler ce iiui oonccrne I'eial el la quslilc
de nos envlaveii datia nu* diles itiloii." And ac-
cordingly all its proiistuiis relate to thecnncrros
of religion, of alaiet, or of freed jierMins. In
Ibe mnnlb of AugUBt, liiUS, the king issued
•nolbcr edict fur the eiiuiblhihiueui of courts
of jutiice in St. Domingo,
eaclares, ponr lea conflrmcr dana les inslroe-
liops et dans les fxercicea de nntrc religion, et
pour lenrfaire apprenih'c q<ielque art et niftier,
dont li-s colonies recefroient bi'aiicixip d'ulilitd
par le relour de cea esclaves ; mais que cea
hiibitans craignent que les csctoTes ne prClen-
dent tire libres en arrirant en France, cc qui
pnurrnit causer aux dits haiiitBusnneperle con-
siderable, atlesd^tounierd'uiiubjet aussi pieux
et luisi utile ;"
" Le Itoi ordnnne que *\ quelqucs una dei
hahitans des colonies, ou ilea officiera employ^
dans I'olat veitlent amcner avec cux des es-
c1avesn<^gret<le I'unondel'iuitTesexe, en qua-
lity lie iltunestiqueB un antremenl.poiir lc<for-
lilierdDDsta religiun, ^. leH proprietairecscront
tcnus d'en olitenir la perinisstiin ite« goiiTerit-
cnrs g^iit-ruux on rouiinanduiiB daoii chnque
isle, lr.i{iii'!le permission cuiitiendra. le noin do
prnprielaire, celuidesescliive«,leur ilge,et leur
signal emenl.
~" Lps pmprlf'taircs de* dils eirclaTea veront
pa rritie merit obliges de fairo ciirpgistrer ladilo
(lermisiiion an grrtTi- di' la jurisdidion dii lien
deleiir r(:iidei:i-« iiv.-iiit !eur i'c|<iirl, etencelui
ite ramimui^ du lieu >hi ri(''i:in>iiement, dans
huiiaine apiis I<-ut nrrii I'a en I'Vunce."
Tbe eilict next proceeds to eslabliali corres-
pondent reguLtinns for the case uf negro hUvea
whom llii-ir uwuers shall send under the care
of other pemaiM fi-om llie culoiiiea tu France.
It iIhiii iinlaini ib.it regrim sci by their
owners brnngbt or aeot into Franco aliall nut
by reusou iliurcuf acquire any right to their
Ir'cedom, but nhall he coinpeUBble lo return lo
the colonies at the will of their owner* : it in pn>-
vidnl bowerer, that in case tlio onuers ha*«
lu^lcclk^ tu comply with tlie prescribed regula-
IJoiiH, tlie negmeii shall become tree, and Iba
uwiiera sball lose all property in tbem.
The remainder uf the edict does doI affect
the case liclbre ua,
nir. Baron Maicrcs (Ilislnriie Anglicannj Se-
lecla Monumenta, pp. 13, 3U1,) oliserrea of a
passage in the Encomium Bminie that " it plain-
ly xbeH'stI ml there were at this lime in Uenmnrk
Kei'iml men in astute of sla>ery, called in tbia
|Kis>iigeM'7i't .- and otberstbat were I'reed-men,
firlhni, ufler having been slaves, bnd been mad*
free, it icnit tilrili ; and a Ibiid sit of men
nhn liHil alwavH \<rvn tVt-c, but were nut mible,
and ubo are 'in this pasii^igu cnlleri ignoHletf
and priibably were the hiitiliiiiTihiieii and tiamly-
crafisiiien uf the coumry ; aud, liKtJy.a fourlll
Rcl, who were colteil nolitenien, uubiffi, and
u bo si'eni til have Ik^cu the warriors, nr mili-
tary part nl' ihe people, and who niusi hare
been lery nnoieroiis, since bI) the whn^rurmj
of Caniile the Daue, it hen he invaded EnglaiM
after tlie death of Ling Swein, his father. It
said to have been compoMil of men of this clan,
TAe yegro Case.
■ twgfc* in Uie Gouree uf ibe saiJ trade u
■ MCMMVe from Africa aforesaid to VirginJB
rfewni^ to be ibere Eold; and aftcrwarda, lo
«il,MtlM 1st ibjr of Auguu Id the year last
•■M* wm emit nobilea.' And Ibe people
rfftgl^nil were, probably, at ihiaperiud dis-
tifMhvl iaU differenl ciastas of nearly tbe
■M Iml*- At teail, it it rvrtaio, tbal, before
•• Ihniui ConqueM aa well ai after It, the
Sboiltr of the cott«|;en and li a ndy craftsmen
M fibclumithi, millero, and cart-irrigbla)
nirj vtllafea were alares, or what our utd
ba baoln oUled ' rilldtii regardant,' or belong-
iiftoliie manor, or serviodscriptitii gUia,iud
«fR alienated, as sucb, by name, togelber
m4 llieir fatiiiliee, and all tbe goodi anilcbal-
tranicribed from Ingul-
|tai ft Branl Dlade by Thorold in tbe year
Wl to UM «l>b<<y of Crowlaod of >• totum ma-
, (ud elvvEa others)
MH, mm omoilius lioois et calaliia,' qiicc
Mmt m •tidft Tillii, et in campis ejus, ei in
MOKic, mbsqiK uUo de omnibus rctioemeDio."
Aru Wales, Rowlanil*, in recnuating the ob-
Mmtina> respecting tbe " true staLa and con-
J-|i«*f ibe Brititb gorernmeDt," and of" the
- -'M Bntieh leiiurea, and the former cus-
M aad iMHVea thereof," which be bB<1 col-
• n>d fron Uioio materials uf information,
vbcJi " our own careleai neglect bad omitted,
bet, *• • jual reproach to our wretched osci-
^urj aail nrmiunMi, the covelousnesa of our
»■» wwchf'iil conqueror* took care lo record
*Mt fumarte fat us ; that ia ihe Eo^ilish mo-
aMitl,wtiaii ibry ({otlhemiehea FFlsed of Ihe
h«fi— iuiwfuur British royalties, and fouod
u ■aJc lUemteltea intilled or interested by
4«M ar oviiqueal lo tbe ancient re vena es of
■e BntUh prineei," says (Mona Antiqua
BMHsMa. 410. Sd ediliou, London 1766 ; Ihe
baer vMimm wat pnbhxheil in Dublio, in
IM, Ih* JFMT of tbe anibor'a dealli :) " We
r '.J, that Ihe tenants of bond-lands and ill-
if^ ac tliay were of a qui>lity below and
'<nar to fraeliolders, so Ibey were obliged tu
.:>*Mr drailgerirs, anil employed in more
-•lie work*, and were to be diKjiosed of in
iitj Uiiagi, at ibeir lords and princes pleased
jic them. Aud of llicae suiue were free
-iitia, and anmo pure natirei. The free na-
Lfi*. I lake lu be Ihoae, ivbo had some degree
•(fiecJutn, who might ki> where tliey wunid,
m^t buy anal acll, and had tuany immun* '
■ *(s( tbey werecallcd)
<t a« lliev liste<l. And
'isenber lu hate mel, in air William Gruf-
•I's' bewk, with an abstract of a deed, where
' nawtamU, »peak>i)||i>l 'l>^o1d returns aud
r^aa which had been mid* by jurors to tbe
I of coijuiry irilo taourea,
nuxx.
aforeaaid, the aaid James Sommer«ell, betiq>
aod continuing such negro slate, was told io
Virginia aforesaid to ons Charles Sleuut, enj.
who then was an inhabitant of Virginia afure-
ihe natives of tbe lownsbip of Porlhoethwy,
many years alter the lime of the British
Ktinces, were sold a^ part of tbeeslnle of those
inds ihey belonged lo ; and of wbiob, and of
others of that aiirl I ha*e giren elsewhere large
inslmoea. And 1 hare by meacopyof iujuoc-
lion, issued out by Henry the seventh, king of
England, commanding escheators, end all other
minisiei'ial oiGcers, to see that Ibe king's nalite
Icnenla kept wllbin tlieir priiper limili ; and if
any of them were found to stray and wander
from tbeir home, to drive iliero back, like
beasts to their plofolds, with the greatest
severity."
And in a book intilled Beauties of Rncrland
and Wales, toI, irii, by the Rev. J. Evans,
8vo, IBia, 1 have met with the following pas-
sage :
*■ Among the boons bestowed u|H>n tbe cor-
poration ot Beaumaris, tio late even as tlia
fourth year of Elizabeth's reigo, the following
grant appears: ' All and sioKulur tbe king's
' luiids, lenemetils, and berciliiamenis in Bodi-
' new, aodhis villagers (culiirelors) in (be same
' town, if any be, with their offspring.' But
this was probably no more than an eieinplift-
calion of a grant, madj lung before, by way
of conRrmatioa.
■■ The fallowing is one, out of three docu-
ments, Bilduoed by Ur. Itowlands. ' Edynfed
Vychsn ap Edynfed, alias diclus Ednyled ap
Arihelw 01 Uavydd ap Grutfyd et Howe) ap
Dsvydd an Ryryd, alias dictus Howel ap Ar-
ihelw uz Uavydd ap Gryffydd, Ubtri lenentea
D'ni Regis villcc de Rbandei Gadog, Sec. de-
dimuB et confirmavimus Wilhmo ap Gryf-
I'yild ap Gwilim armtgero et libera tenenti de
Porlbainet, ice. septem nalivos nostroB ; viz.
Howel ap Darydd Dew, Malln ap Uavydd
Ui^w, Jevan ap Etau Ddu, Llewelyn ajt
t ap Sit
Dew, Howet ap Slatio ap Davydd Dew, et
Sec. says (p. lao) '* For what light we have
from these records, wo ought to be much
obliged to the generous care aud industry of
that very worthy and deserveitly celebrated
Cersiin, sir William Grulfydd ot Peoryhon,
night and charoherlain of Norlh Wales ;
who preserved these records from perishing,
by collecting so many ol them ns he could re-
trieve from moth and corruplton ; and then
causing those scatlereil rolls and fragmenla
whichlie oauld meet with, to be tiiirty wriilen
by one JenkyoGwyn, iu two large booki of
EiaTchmrut, lor the informalioo of posterity.
>ne whereof is that bunk, bupl always m the
Chaniberliiin'* office, cbW by ihe name uf the
Extent of North Wales ; and the oilier ha
transinitled into the Auilitor's uffioo at Louden,
where it is preserved to Ihu day."
. "^trc
<«.<. >«*•«>
IV S'esTo Case,
[SO
t
IW
• A-i**
nanaaiiaed, enfrancbisetl, wt free, or du«
.nia^^vJ ; lod tbat the same James Somroer"
wu. 90 bciDZ the negro slmve and property of
«iiv^ 7«f».'a a.m tUc »aid Charles Steuart, and the laid
^ "^u . '«iK- -'an ?vr-im ^•{UkIia
. , ..,««..•»• »*»*.•« »iiui» MC 'tiiii/oas
. .^ -.^. .** X ^W5*v ^ iiiutu t»fuif\d ap
,•* i,.;v> .•- i>9*:»*i4us *a».afwr]ie-
^ •.v.tt V, '.Mi x.iJ.i«i..' Ga»i*»C. iO die
N . :v«: V ye ' i>faii;.ef. 5cc/ it is slated
*K.. ■ .» :ic ♦■.•N«''x /ans cr'EciiUDd.if some
«M .t» i -. 9..-.U .*•- '.s^i. xu u^uji coDilitioD is, to
.4. v.- A.1 'i- j.'K':tJi...vs up<ia them, male and
MSti:.'.c. ' r. > ici vfT.i^T denominates '-an
c-.t-cvi ..• i- a j^^erip^ projl' of persons be-
l>e .»':o!e ot" Mr. Burcott's sixteenth chap-
1^ ^r.ca';>c- Oh the Criminal Law of Scol-
1.1 .K-' :3» 1 C'.ni'.inentary, cx'eniliiin' throu«;b
sc««r.:t% -i'n«* iiopa^.*, upon the ^ Act' (already
boIavO) * tvr preveLi:in^ wron£;ous imprison-
* meui, aud a^aiust undue delays in trials'
(chap. c> « f tite eiirhlh and ninth sessions of king;
^\ iiliaar:! |-:irliaixic*ut 1701). He says of it
tb.it it coii>|>i!$t:s(in some respects with (greater
•tvnritv to the Uberty of the subjects) the pro-
vi>ion<* of all the several statutes which the
lekfislaiure of Eusjland has passed for the per •
•i>nal ht^rty of the subject, and that therefore
it justly may beteimed the Ma^na Charta of
K'Oilaiid. Ai d in the case of Andrew against
AJurdiH-h, the lord justice clerk, Hope (now,
181'.Mord president) said •* Our Act 1701 is
grvatly more favourable to the liberty of the
unhjec't in every respect than the IJalieas Cor-
|>us .\clof Euj^land."
Of a law thus celebrateil, the provisions will
ataturaily excite in the mind of every lover of
Lis country a warmth of interested curiosity.
The enactments of this statute are numcrou*,
•xteuNive, and minute. The statute itself is
Ihen'fore very lonir. I recollect not any ac-
count of it in'Mr. Lain&f's History. Mr. Bur-
uelt exhibits a brit- f history of its origfin, and
analysis of its provisions ; which I will sub-
slit nte for the copiousness and particularity of
the act itself.
** The ConTenlion of Estates of Scotland, in
the >(*»<' 1()89, declared, anion^^ other thint^s,
that,* * exact iif^ exorbitant bail, and imprisoning
* |M'rson>' wiili'iut ex])ressin^ the reason liieie*
' of, uii<' !elu3 in^ to put them to trial, an* cnn-
■ trnry to ihe-kuown laws, statuten, anti freedom
' of the realm,' and the redress nf this ihry
claimed as their undoubted rit^ht aud privilege;
And further, * that no declarations, doiii^fs ur
' proceed infifN, to the prejudice of the people,
' m any of the said premises, ought m any
* ways to be decisive licreafter in consequence
< or example.' These grievances, in a sub-
■equentietter to the king (1689» chap. t7.) the
estates prayed his majesty to redress by whole*
some laws in his first parliament.
*- f n the first parliament, accordingly, most
of these grievances were re«lressed, and parti-
cularly, the exacting of exorbitant bail, impri'
i soniog persons without expressing the cause,
: and delaying to put them to triai,'by the well
known sutute 1701, cap. 6, which the people
[ in this part of the united kingdom must view as
I one of the greatest benefits conferre<l on them
' by the Revolution, whether it be held as a law
declaratory only of their fornMr rights; or as
introducing provisions in f iivour of the subject,
which had not previously been either so well
define«l, or observed in practice.
'* The objects indeed of this statute are of
the first importance to the security and happi-
ness of every individual of the community ;
inasmuch as the injury of unjust and illegal
confinement, h iiile it is' often the most difficult
to guard against, is in its nature the most op-
pressive and the most like!}' to be resorted to
by an arbitrary government. Some have
thought that unjust attacks, even upon life or
property, at the arbitrary will of the magis-
trate, are less dangerous to the commonwcidthB
than such as are made upon the personal lilierly
of the subject. Without accusation or trial to
bereave a man of life, or by violence to con*
fiscate his estate, would be so gross and noto-
rious an act of despotism, as must at once con-
vey the alarm of tyranny throughout the
whole kingdom. But coutinement of the per-
son by secretly hurrying to jail, where the
sufferings of the party are unknown tir for-
gotten, is a less public, a less striking, and
therefore a more dangerous engine of arbi-
trary government. (Blackst. Comm. book 1,
chsp. 1.)
*^ The statute proceeds accordingly on the
preamble of the previous declaration by the
Claim of Right, and the interest which all his
majesty's suhjf cts have, * that ilic liljcrly of
' their persons be duly sernred ;' and contains
in its enactnititt almost every proviMon, i«hicb
has at any period, or almost in any s\steni of
law, been deemed most conducMve to the per-
sonal liberty of the subject ; m toe hauie time,
it inlro«luccs regulations mid » xeeptions, which,
while they are the best calcubted to ensure
that object, render it nowise inconsistent with
the safety of the public.
'* It sets out by providing arainst the first
steps towards an illegal confinement, the ap-
prehending of the |>ersons without a regular
information and a special warrant, and guards
against any continemcnt, tbiU is not necessary
to ensure the attendance of the party on the
day of trial. In the next place it declares
what crimes shall be bailable, and directs the
sneediest mode of finding bail ; and to preYent
toe possibility of any vsgue discretion being
81]
The Negro Case.
A. D. 1771.
[S9
Chakf Steuari baTing^ occasion to traosact
enuin iffairs and business of bim the said
Chiriei Sleoart in this kingdom, be tbe said
Chsrkf Sieuart, before the coming of the said
writ 10 me, to wit, on tbe first day of October
bikjearof our Lord 1769, departed from
Awrica aforesaid, on a voyage for this king-
km, for the purpose of transacting bis afore-
■d affairs and business, and with an intention
aretarn to America, as soon as the said af-
6in and business of bim the said Cbarlea
Snart in this kingdom should be transacted ;
in 6zing its amount, which might
Mat the whole provisions of the law, it as-
eotaios the mojclmum of bail in each case, ac-
cording to tbe rank of tbe person in custody
|br trial; and imposes biffh penalties on the
ji^ who shall delay modif^mg the amount,
m rerose to accept of sufficient bail, when of-
frrcd. The act, however, would have been
pally defective bad it stopped here, for of
vbtt use would have been the precautions al-
Ridy mentioned, if in cases either where bail
eoulii not be found by the party entitled to it,
a* wben it could not be received, owing to the
Uare of the crime, the person imprisoned
■i^ be wrongously detained, in consequence
rf a delay in puttinflf him to trial by a certain
dij; tbe act therefore directs, that in such
e»N, the party shall have rij^lit to insist, that
vilhiD a certain lime a diet shall be fixed for
\k Irial, and tbe trial carried through and con-
dsdcd by a determinate day, other%vise he is to
WkI at liberty, under the |>pnaity of wrongous
iiayrisooment, anil is not to be again incarcerate,
aalm nn new criminal letters raised against
W, before the lords of Justiciary ; in which
Iw dftf, bis trial must be concluded in ano-
iIkt dij, iiarticularly fixcil by the enactment,
<(fr«rvite the prisoner is to be set at liberty,
lodto be tor ever free from all question or pro-
CCK for tliat crime. Certain exceptions are
iben ioiroduced with resfiect to treason, and
Mtae Cither oflTences more immediately affecting
t^ public security ; and a provision annexed,
tlut uii person shall be *■ transporte<l furth of
'tlii<i kingdom,' except with his own consent,
fiven before a judge or by legal sentence,
Boder the certification, that any judge or ma-
{a^raie, who shall give order for such trans •
portaiion, or any one, who shall so transport
taotiier, shall nut imly Im* liable in the pecu-
aiiry paius of 'wrongous impriKonment, as de-
dared by the net, but sbaii lose their oflices,
!&•! be I'f^'hired incanablu of all public trust.
Tht-«e arc the general outlines of this important
uaiiite ; the value of which cannot be too
fcu^nly prized by the people of Scotland, nor
^ rtUervance too strictly maintained by the
judjes and magistrates.'*
B) the act of the 30ih of George S, per-
KU accused of sedition are excepted from
aruio pn)vi*fion8 contained in the act against
*^iD::*lUs imiiiisoniiient. As to this, see the
Cm of the liiuters against tbe Militia Law,
and afterwards, to wit, on the lOtb day of No-
vember in the same year, arrived in this king-
dom, to wit, in London, that is to say, in the
parish of St. Mary-1e-Bow in the ward of
Cheap; and that the said Charles Steuart
brought the said James Sommersett, his negro
slave and property, aK>ng with him in tbe said
voyage, from America aforesaid to this king-
dom, as the negro slave and property of bim
tbe said Charles Steuart, to attend and serve
him, during bis stay and abiding in this king-
dom, on tbe occasion aforesaid, and with an
intent to tarry the said James Sommersett
back again into America, with him the said
Charles Steuart, wben the said affairs and husi*
ness of the said Char1e<)' Steuart should be
transacted ; which said affairs and business of
the said Charles Steuart are not yet transacted^
and the intention of the said Charles Steuart
to return to America as aforesaid hitherto hath,
continued, and still continues. And I do fur-
ther certify to our said lord the king, that tha
said James Sommersett did accordingly attend
and serve the said Charles Steuart in this king*
dom, from the time of his said arrival, until tha
said James Sommersett*8 departing and absent-
ing himself from the service of the said Cbarlea
Steuart herein after- mentioned, to wit, at Lon-
don aforesaid in the parish and ward aforesaid ;
and that before the coming of this writ to me,
to wit, on the first day of October in the year
of our Lord 1771, at London aforesaid, to wit,
in the parish and ward aforesaid, the said Jamea
Sommersett, without the consent, and a^inst
the will of the said Charles Steuart, and withoul
any laivful authority whatsoever, departed and
absented himself from the service of the said
Charles Steuart, and absolutely refnsed to re-
turn into the service of the said Charles Steuart,
and serve the said Charles Steuart, during hia
stay and abiding in this kingdom, on the occa*
sion aforesaid : whereupon the said Charles
Steuart afterwards and before the coming of
i this writ to me, to wit on the 261 h day of No-
vember in the year of our l^ird 1771, on board
I the said vessel called the Ann and Mary, then
and still lying in the river Thames, to wit at
London aforesaid, in the parish and ward afore-
said, and then and still bound upon a voyage
for Jamaica aforesaid, did deliver the said
James Sommersett unto me, who then was,
and yet am master and commander of the said
vessel, to be by me safely and securely kept
and carried and conveyed, in the said vessel, m
the said voyage to Jamaica aforesaid, to be
there sold as the slave and property of the said
Charles Steuart ; and that I did thereupon
then and there, to wit at liondon aforesaid iu
the parish and ward aforesaid, rccciTeand take,
and have ever since kept and detaioe<l the said
James Sommersett in my care and custod}', to
be carried by me in the said voyage to Jamaica
aforesaid, tor the purposi? aforesaid. And this
is the cause of my taking and detaining the
said James Sommersett, whose body i hare
now ready as by the said writ I atn com-
manded." .
fS]
12 GEORGE IIL
The Negro Cue.
P*
After the readinn^ of the return, Mr. Ser-
jeant Dary, one of the counsel for Som*
mersett the negro, desired time to prepare
his argunnent against the return ; and on
account of the importance of the case, the
Court postponed hearing the objections against
the return, till the 7th of February, and the
recognisance for the negro's appearance was
ouutinued accordingly. On that day Mr. Seij.
I>avy and Mr. Serj. Glynn argued against the
return, and the farther argument was post-
poned till Easter term, when Mr. Mansfield,
Mr. Alleyne, and Mr. HargraTC, were also
beard on the same side. Afterwards Mr.
Wallace and Mr. Dunning argued in support
of the return, and Mr. Serjeant Dary was
beard in reply to tbero. The determination of
the Court was suspended till the following Tri-
nity term ; and then the Court was nnanimous-
Iv of opinion against the return, and ordered
that Sommersett should be discharged.
Argument of Ma. Harobave for the Negro.*
Though the learning and abilities of the
gentlemen, with whom I am joined on this
•ccasiouy bsTe greatly anticipated the argu-
■lente prepared liy me ; vet I trust, that the
importance of the case will excuse mci for dis-
closing my ideas of it, according to the phm
and order, which I origindly found it con?e-
nient to adopt
The case before the Court, when
^a!tc£!^^ expressed in few words, is this.
Mr. Stenart purchases a negro
alare in Virginia, where by the lav of tlie place
negroes are slaves, and saleable as other pro-
perty. He comes into England, and bnngs
the negro with him. Here the negro leaves
Mr. fittenart's senriee without his consent;
and aiUrwards persons employed by him seize
the negro, and forcibly carry him on board a
•hip bound to Jamaica, tor the avowed. pnr-
pcse of transporting him to that island, and
tliere selling nim as a slave. On an applica-
tion by the negro's friends, a writ of Habeas
Corpus is granted ; and in obedience to the
writ he is i^odnced before this court, and here
anea for tiM restitution of his liberty.
The questions, arising on this
«?&?cm£ ^""^ ^^ '^ merely conceni the
unfortunate person, who is the
anlject of it, and such as are or may be under
like unhappy circumstances. They are highly
interesting to the whole community, and cannot
be decided, withoat having the naost general
* The following Argument, on the behalf
of the negro, is not to m considered as a speech
actually delivered : for though the author of
h, who was one of the counsel for the negro,
did deliver one part of his Argument in couct
without tlie assistance of notes ; yet his Aiga-
meat, as here publishpd, is entirely a written
^omplfiiition. This drcumstanee is mentioned,
Icat the author shouhl be thought to daim a
Merit lo which be has not tbelaaat title Her-
and important consequences; vritbont extensive
influence on private happiness and public to-
curity. The right claimed by Mr. Sleuart to
the detention of the negro, is founded on the
condition of slavery, in which he was before
his master brought him into England ; and if
that right is here recognised, domestic slaverv*
with its horrid train of evils, may be lawfully
imported into this country, at the discretion oif
every individual foreign and native. It will
come not only from our own colonies, and
those of other European nations ; but from
Poland, Russia, Spain, and Turkey, from the
coast of Barbery, from the western and eastern
coasts of Africa, from every part of the world,
where it still continues to torment and dishonour
the human species. It will be transmitted to
us in all its various forms, in all the fi^radationa
of inventive cruelty : and by an universal re-
ception of slavery, this country, softmous for
public liberty, will become the chief seat of pri*
vate tyranny.
In speaking on this case, I shall ^^^^^ ^^i^^
arrange my observations under two •'^ ^ ^^
heads. First, I shall consider the *^*^
right, which Mr. Stenart daims in the persoB
of the negro. Secondly, I shall examine Mr*
Steuart's authority to enforce that right, if he
has any, by imprisonment of the negro and
transporting him out of tiiis kingdom. The
Court's opinion in fovonr of the negro, on either
of these points, will entitle him to a dischaigt
from the custody of Mr. Stenart.
(Irt.) The first point, concerning ^^ ^^^^ ^
Mr. Stenart's right in the person of J!^^'^'
the ne^, is the great one, and SieacirA
that which, depending on a variety f"'^
of considerations, requires the peculiar attention
of the Court. Whatever Mr. Steuart's right
may be, it s|nings out of the condition of
slavery, in vihich the negro was before his ar-
rival in England, and wholly depends on the
continuance of that relation; the power of im-
prisoning at pleasure here, and of transporting
mto a foreign country for sale as a slave, cer*
Uinly nnt being exerdseaUe over ,^ ^^
an ordinary servant. Accordingly <buiid«tioD of
the return foirly admits slavery ^ ^^^^ «•
to be the sole loundation of Mr.
Stenart's daim ; and this brings the question^
as to the present lawfulness of slavery in Eng-
land, directly before the Court. It would have
been more artful to have asserted Mr. Steuart'g
daim m terms less explicit, and to have stated
the stovery of the negro before his coming into
England, roereljr as aground for claiming him
beie, in therdation of a servant bound tofollow
wherever his maater should require his service.
The case represented in this disguised way,
though in substance the same, would have been
less darmiuff in iU first appearance, and
night have afforded a better chance of evading
the true question between the partiea. But
this artifice, howeverconvenient Mr. Steuart'i
conned may find it in amment, has not been
adopted in the return; the caae being there
■tatid M it really is, wiUiinit iny auppriwion
The Negro Cau.
. . i «aitoe»1 ttic ([rest extent of Mr.
■ cfaim, or any calouhnK ot'IanfCiiaei^
s reiiures of slsT«ry iu the
f ttti nrdiunry aemnl.
^^_ Bejiire I tniep upon Ihe en-
iHMi m lairy into llic preienl iBwfulnfss of
J^ alaTcry in Enclnnil, I lliink Jlnf-
t^esMry la make soDie general ob-
MTUiavi «ii (Ufery. 1 mein liowefer al-
nnu kfipp in licw ilavery, Dot as it ia in tlie
friibanaC* luhjeotloan M«otule prince, but
mIj m U ia in llie relation of Ihe lowed speciei
rfMrraM <o lit* maaler, in any aiate, nhetber
firtvr Mberwiae in in rorm of governmenl.
QbI coMfamoa lias ensunl from diaennrBing'
«A«ery, without due altenlion (o tlie ili^
fcanee Mween the Jesnoiiitm of a sovereign
a*«ra vliolt people and tlial of oue subject
nm ■■■Iber. The former la foreipi li> the
fnMVl ea>« ; and therefore when 1 am de-
•oiliiayrfBvery.or obsFrfing upon il, I desire
•• be nadcrtfood aa ciiiifintng mvEdf tu the
lalln-t Ikoogh from the conneclion belwecii
keiiraaubrMU, anmeof myobservaliona may
farhapa be applicable to butli.
TT , ^ Slavery hai been attended in
Maatiu. dilfereiil cnunlries witli circnm-
*'■ Mancea so larious, aa to render it
Mcnit t9 EtTC u ^^neral description of il.
TWRmbkii lawyer (a) calls slavery, a couati-
tmtm of the taw ul' nalinns, by nlilch one is
■air aiabfMl to anollitr contrary to nature.
Ibo tlw^ as has heco often observed by the
maraiuiatiMi, is mistabing ihe law, by which
ibtfj ta conitituied, for alavery ilaelf, the
WM fat tha effect ; Ihough il mast he con-
fBal,Uiat the latter part of the definition nb-
■Hrfj hiol* at Ihe nature of alavery. OrDtlua
W fcalrihiaalavery to be, an obligatinn to lerre
•BsAv for life, in conaideraiion of being aup-
fW iMi Ihe bars neeeisariet of lile. Di'.
KaikrfinI (<-) r
«Am dcininit detuotisni to be an alienable
ncte ha direct alt the actions of another, frnin
rtaac( cMMludea, ihal perfect slavery is an
rM<pli>w 10 be so directed. Thia last detini-
tMa any aMte in convey a general idea of
<lit«fj} but like that by Grolius, and many
■tbar dafiaUoni which I have seen, if uoder-
•nud Mricdj, will scarce suit any species of
slavery, W which it is applied. Besides, il
avM ottcafalavcry'* severest and most usual
tadilients t ibcqnaliu, by which it involves all
Ika ta«e m the iDisfurlune of (he pareut. In
Iralk, M I have already hinted, the variety of
fciiwa. in wliieta ilavery ap|>ean, tnakei it al-
Mat iiBpoaalfale to convey a Jiisl notion of it In
■lie KBT of drltnilioa. There are however
- i|>'rii*a, which have accomjiauied
- 111). 1, 111. S, I. ♦, a. 1, ' Serv'riua
I iiirujunagvntiuni, ^nft quia duini-
u evnira ualoram auhjicitur.*
MJ Jar. B»ll. Kb. 'J. o. i. .. j(T.
^3 iMt-Nal. L. b. l,e.tn,f. 474.
A. D. 1771.
ilavery in mosl placet ; and by altendiD|r ia
these, we may always distinguish i I, front lh»
mild speciea of domeatic service so common
and well known in our own country. I shall
shortly enumeralethe most remarkable of ihosa
properlies; |iHrticularly, such as cliaracterize
ihe specie of slavery adopted in our American
colooies, being that now under the considera-
tion of this conrt. This I do, in order thai a
just conception may be formed, of the propriely
with which I shall impute to slavery the most
pernicious effecls. Without such a previous
explsnation, the most solid objectiona to (be
permission of slavery will have ibe appearance
of nnmeening, though s|ie('ious, declainalion.
Slavery always imports an obli- tmixnia
gation of perpetual service; an unKjirm-
ohligation, which only the conaent u^!)^.''
of the mailer can dissolve.— It ge-
nerally gives to the mailer, an arbitrary power
of ad miaielering every anrt of correction, liow<
ever inhuman, not immediately afltcliug tbe
life or limb of Ihe slave : sDmelimes even these
are leQ exposed to the arbitrary will of tha
master ; or they are protected liy fines, and
other slight poniabmeuta, too iocooaiderable to
reatraio the master's inhnmanity. — It creates
an incapacity of aeqniriag, except lor the
roaster's benefit.— Il allows the mailer to alie-
nate Ihe pei«on of the slave, in the aaiue man*
ntr as other propeHy.— Lastly, it descenda
from parent to child, with Jail its setere ap-
penilages.^ — On the most accurate comparison,
there will be found nothing exaggerated in this
repreaentBtion of slavery. The description
agrees with almost every kind of slavt'ry, for-
merly or now existing; except only that rem-
nant of the ancient slavery, which sllll lingers
in some parts of Europe, but qualified and
moderate/ in favour of the slave by the hu<
raane grovisinn of modern times.
From this view of the condition
of slavery, il will bo easy to deriie "Ji,*^^."
ils destructive consequences. — It
corrupts the morals ol the master, by freeing
him from those restraints with respect to his
slave, so necessary for controul of the human
passions, so beneficial in promoting the prac-
tice and confirming Ihe habit of virtue. — It is
dangerous to the master ; because his oppres-
sion excites implacsble resentment and hatred
in Ihe slave, and tha extreme minery of his
condition continually {prompts him to risk tha
gratification of them, and his situation daily
fumishea the opporluniiy — To the slave it
communiuates all the afiliclionw of life, wilhout
leaving for him scarce any of its nieasurea ;
and it depressea the excellence of his nature,
by denying the ordinarv means and motives of
improvement. Il is dangerous to the state,
by its corruption of those citizens on whom ila
prDsperily depends ; and by adnnlling within
II a multitude of peraotis, wlm being excluded
from tbe common beneliiB of the conatitution,
are inlerealed in scheming its destruction. —
Hence it ia, that slavery, in whatever tighl wa
view it, may b« deemed ■ most pernicious ia-
27]
12 GEORGE III.
The Negro Case.
[28
stitution: immediately so, to the unhappy
person who suffers under it ; finally so, to the
master who triumphs in it, and to the state
which allows it.
opioiooof However, I m«st confess, that
aome modem notwithstanding the force of the
£^"0° the reasons against the allowance of
miuiy of »ui- domestic slavery, there are civiUans
TCTf, but un- _ ••/ ■ • • ^
derntnyrc- of great Credit, who insist upon
•iricuoiu. 1^ u^-jjiy . founding themselves
chiefly, on the supposed increase of rohhers
and b^gars in consequence of its disuse. This
opinion is favoured by Puffendorf (d) ai|d
Ulricus Huberus (e). In the dissertation on
slavery prefixed to Potgiesserus on the German
law * de statu servorum,' the opinion is exa-
mined minutely and defended. To this opi-
nion I oppose those ill consequences, which I
have already represented as almost neces-
sarily flowing from the permission of domestic
slavery ; the numerous testimonies Sjpainst it,
which are to be found in ancient ana modem
history ; and the example of those European
nations, which have suppressed the use of it,
after the experience of many centuries and in
the more improved stale of society. In jus-
tice also to the writers just mentioned 1 must
add, *that though they contend for the advan-
tages of domestic slavery, they do not seem to
apnrove of it, in the form and extent in which
it has generally been received, but under limi-
tations, which would certainly render it far
more tolerable. Huberus in his Eunomia
Romana {/) has a remarkable passage, in
which, after recommending a mild slavery, he
cautiously distinguishes it from that cruel spe-
cies, the subject of commerce between Africa
and America. His words are, * loqoor de ser-
vitute, qualis apud civiliores populos in usu
fuit; nee enim exempla barbarorum, vel qua
nunc ab Africft in Americam fiunt hominum
commercia, velim mihi quisqiiam objiciat.'
•ritiaortu. The great ongin of slavery is
very* f?**^'^ captivity in war, though sometimes
iuiMrn coui- it lias Commenced by contract. It
^^' has been a question much agitated,
whether either of these foundations of slavery
is consistent with natural justice. It would be
engaging in too large a field of enquiry, to at-
tempt reasoning on the general lawfulness of
slavery. I trust too, that the liberty, tor which
I am contending, doth not require such a dis-
quisition ; and am impatient to reach that part
of my argument, in which I hope to prove
slavery reprobated by the law of England as
an inconvenient thing. Here therefore I shall
only refer to some of the most eminent writers,
who have examined, how far slavery founded
on captivity or contract is conformable to the
law of nature, and shall just hint at the reasons,
which influence their several opinions. The
antient writers suppose the right of killing an
(d) Law of Nature and NaUoDS, b. 6, 0. 3,
1. 10.
(t) Prelect. Jur. Cir. p. 16.
(/) See page 48.
enemy vanquished in a just war ; and thence
infer the right of enslaving him. In this opi-
nion, founded, as I presume, on the idea of pu-
nishing the enemj for his injustice, they are
followed by Albericus Gentilis (g), Grotius (A)^
Puffendorf (i), Bynkershoek Q), and many
others. But in < The Spirit of Laws' (k)ihe
right of killing is denied, except in case of ab-
solute necessity and for self-preservation.
However, where a country is conquered, the
author seems to admit the conqueror's right of
enslaving for a short time, that is, till the con-
quest is effectually secured. Dr. Rutherforth,
(/) not satisfied with the right of killing a van-
quished enemy, infers the right of enslaving
him, from the conqueror's right to a reparatioa
in damages for the expences of the war. I do
not know, that this doctrine has been exa-
mined ; but I must observe, that it seems only
to warrant a temporary slavery, till reparatioa
is obtained from the property or personal la-
bour of the people conquered. The lawfulness
of slavery bV contract is assented to by Grotius
and Puffendorf (in), who found themselves on
the maintenance of the slave, which is the con-
sideration moving from the master. But a
very great writer of our own country, who is
now living, controverts (n) the sufficiency of
(g) De Jur. Gent. cap. de servitute.
(h) De Jur. Bell. 1. 3, c. 7, s. 5.
(i) Law of Nature and Nations, b. 6, c. 3,
8.6.
(j) Qufest. Jur. Publ. I. 1, t. 3.
(k) B. 15, c. 2.
(I) See his Inst. Nat. Law, vol. 2, p. 573,
and vol. 1, p. 481.
(m) See Grot. Jur. Bell. 1. 3» c. 5, s. 1, 2,
and Puff. Law of Nature and Nations, b. 6»
c. 3, s. 4.
(n) See Blackst. Comment 1st ed. vol. 1,
p. 412.
The authority of Mr. Justice Blackstone
having been cited both for and against the
rights of persons claiming to be the owners of
slaves in Great Britain, 1 have thought it worth
while to insert together all that I find relating
to the subject in his Commentaries:
*' The spirit of liberty is so deeply implanted
in our constitution, androoted even in our very
soil, that a slave or a negro, the moment he lands
in England, falls under the protection of the
laws, and so far becomes a freeman ; though
the master's nght to his service may possibly
still continue." Vol. l, p. 127.
** I have formerly observed that pure and
proper slavery does not, nay cannot, subsist in
England ; such 1 mean, whereby an absolute
and unlimited power is given to the master over
the life and fortune of the slave. And indeed
it is repugnant to reason, and the principles of
natural law, that such a state should subsist
any where. The three origins of the nf(i\i of
slavery, assigned by Justinian, are all ot them
built upon false foundations. As, first, slavery
is held to arise ' jure gentium,' from a state of
captivity in war; whence sltTei are called
B] The Negro Case.
inch i oontiderakion. Mr. Locke has framed
aaoUicr kind of argument against slarery
« nasftpia, ^aasi mann capti.' The conqueror,
njike civilians, had a right to the life of his
o^; and, having spared that, has a right
bdctl with him as be pleases. But it is an
Btroe nontion, when taken generally, that,
if^ the law of nature or nations, a man may
kill bis enemy : he has only a right to kill him,
IB particular cases ; in cases of absolute ne-
ccHity, for 8elf-«1efeDce; and it is plain this
ibnlute necessity did not subsist, since the
Ticlor did not actually kill him, but made him
prisoner. War is itself justifiable only on prin-
ciples of teif-preser? ation ; and therefore it
gires no other right over prisoners but merely
to disable them from doing harm to us, by con-
fiaiog their persons : much less can it give a
right to kiU| torture, abuse, plunder, or even to
cnUve, an enemy, when the war is o?er.
Saoe tlierefore the righ( of making slaves by
ctptivity depends on a supposed right of
daaghter, that foundation failing, theconse-
^ocnee drawn from it must fail likewise. But,
SKOiidly, it is said that slavery may begni * jure
' dvili ;' when one man sells hiipself to ano-
ther. This, if only meant of contracts to serve
«r work for another, is very just : but when
applied to strict slavery, in the sense of the
laws of old Rome or modem Barbary, is also
iaipossible. Every sale implies a urice, a
' ^oid pro quo,' an equivalent given to tne seller
is lien of what he transfers to the buyer : but
what equivalent can be given for life, and
Acrty, both of which (in absolute slavery) are
hcUio be in the master's disposal? His pro-
foij slso, the very price he seems to receive,
devvtrcs ipsojacto to bis master, the instant he
hKomts his slave. In this case therefore the
frojff gives nothing, and the seller receives no-
ibro);: of what validity then can a sale be,
vkich destroys the very principles upon which
111 sales are founded? Lastly, we are told,
that besides these two ways by which slaves
' 6ant,' or are acquired, they may also lie here-
diury : * servi nascuntur ;' the children of ac-
quirecl slaves are, * jure nature' by a negative
kiul of birthright, slaves also. But this, being
built on the two former rights, must fall together
with them. If neither captivity, nor the sale
of one's self, can by the law of nature and
reason reduce the parent to slavery, mpch less
cau they reduce the oflfsiprint;.
*' Upon thr«e principles the law of England
abhors, and will not endure the existence of,
•Uver}' within this nation : so that when an at-
trcopt was made to introduce it, by statute
1 £dw. 6, c. 3, which ordained, that all idle
vi^bonds should be made slaves, and fed upon
brrad, water, or small drink, and refuse meat ;
should wear a ring of iron round their necks,
armig or legs; and should be compelled by
beating, chaining, or otherwise, to perform the
work assigned them, were it never so vile ; the
sphitoftlie nation could not brook thiscondi-
tiOB, even in tho most abandoned rogues; and
A. D. 1771.
[30
I
by contract (o) ; and the substance of it is,
that a right of preserving life is unalienable ;
that freedom from arbitrary power is essential
"to the exercise of that right; and therefore,
that no man can by compact enslave himself.
Dr. Rutherforth (p) endeavours to answer Mr.
Locke's objection, oy insisting on various limi-
tations to the despotism of the master ; parti*
cularlyi that he has no right to dispose of the
slave's life at pleasure. But the misfortune of
this reasoning is, that though the contract can-
not justly convey an arbitrary power over the
slave's life, yet it generally leaves him without
a security against the exercise of that or any
other power. I shall say nothing of slavery
by birth ; except that the slavery of the child
must be unlawful, if that of the parent cannot
be justified ; and that when slavery is extended
to the issue, as it usually is, it may be unlawful
as to them, even though it is not so as to their
parents. In respect to -slavery used for tho
punishment of crimes against civil society, it is
founded on the same necessity, as the right of
inflicting other punishments ; never extends to
the offender's issue ; and seldom is permitted
to be domestic, the objects of it being g^ene-
rally employed in public works, as the galley-
therefore this statute was repealed in two years
afterwards. And now it is laid down, that a
slave or negro, the instant he lands in Engkiod,
becomes a freeman ; that is, the law will pro«
tect him in the enjoyment of his person, and
his property. Yet, with regard to any right
which the master may have lawfully acquired
to the perpetual service of John or Thomas,
this will remain exactly in the same state as
before ; for this is no more than the same stato
of subjection for life, which every apprentice
submits to for the space of seven years, or
sometimes for a longer term. Hence too it
follows, that the infamous and unchristian prac-
tice of withholding baptism from negro ser-
vants^ lest they should thereby gain their li-
berty, is totally without foundation, as well as
without excuse. The law of England acts
upon general and extensive principles : it gives
liberty, rightly understood, that is, protection,
to a Jew, a Turk, or a Heathen, as well as to
those who profess the true religion of Christ ;
and it will not dissolve a civil obligation be-
tween master and servant, on account of the
alteration of faith in either of the parties:
but the slave is entitled to the same |>rotec-
tion in England before, as aAer, baptism ;
and, wliatevf r service the heathen negro owed
of right to his American master, by general
not hy lociil law, the same (whatever it be) is
he bound to render when bruoght to England
and made a Christian." Vol. 1, p. 423.
In these passages, there appears to be some-
what of very subtle distinction, if not rather of
contradictiuii.
(o) See Locke on Governm. 8vo edit. b. 9,
c. 4, p. 213.
(p) See his Inst Nat. Law, vol. 1, p. 480.
31]
12 6E0BGB III.
The Nqpro Case.
[32
sltFes are in France. Gonaeqaently ihia kind
of slavery is not Kable to the principal objeo-
lions, which occur affainstsbiTefy in giDen\{q),
Upon the whole of this controFersy concerning
(g) Some writers there are, who deduce the
lawfulness of domestic slavery from the prac*
tiee of it amongst the Jews, ind from some
passages in the Old Testament which are
thought to conntenanoe it. See Vinn. in Instit
Heineoc. ed. 1. 1, t 3, p. 31. There are others
who attempt to justify slavery by the New
Testament, because it contains no direct pre-
cepts against it See Tkyl. Elem. Cir. L. 434.
I— I shul not attempt to examine either of these
opinions.— JBargrove.
In the discussions respecting the African
■lave trade, which were maintained during se-
reral years preceding the abolition of that
traffic (by stat. 46 Geo. 3, c. 58, see also
c. 119, and 51 0.3, c. 93), the authority of the
scriptures was appealed to by the oppugners
and defenders of the trade. On June 24, 1806,
the learned and eloquent Dr. Horsley, bishop
of St Asaph, ddiveced in the House of Lords
upon the subject, every powerful speech, from
which I have extracted the following passages.
*' My rev. brother" (the bishop of London)
*' told your lordships, that perpetual slavery
was not permitted by the Jewuh law. That a
native Jew could be held in slavery for seven
years only, at the longest. For he Lad a right
to his freedom upon toe first return of the sab-
batical year. And that a ibrei^ slave pur-
chased in the market, or captivated in war,
eould be held in slaveiy for fifty years onljr, at
the longest. For the foreign slave had a right
to bis freedom upon the first return of the year
of Jubilee. And from these premises, my rev.
tirother concluded, that perpetual slavery was
unknown among the Jews.
'* I confess, I was carried away by the fair
appearance of my rev. brother's aiguments,
tib, to my great surprise and his utter confu*
•M>n, the noble earl (of Westmoreland) rose,
with his Bible in his hand, and quoted chapter
and Terse against him !
** My lords, with respect to the luUive
Hebrew slave, we have this law, which was
qaoted by my rev. brother : * If thy brother,
* an Hebrew man, or an Hebrew woman, be
< soM unto thee, and serve thee six years, then
* in the seventh thou shalt let him go free from
< thc». And when thou sendest nim out free I
* from thee, thou shalt not let him go away
* empty. Thou shalt furnish him liberally
' ont of thy flock, and out of thy flour, and out
* of thy wine-press. Of that wherewith the
« Lord thy God hath blessed thee, thoa shalt
* give unto him.' Dent xv. 19 — 14.
*< And with respect to the foreign slave, we
have this law, quoted likewise by my rev. bro-
ther : * Thou shalt number unto thee seven
* sabbaths of years, forty and nine years. Then
■ahaltthon cause the trampet of the jubilee to
* sound throughout all the land. And ye shall
' hallow the fiftieth year, and proolaim liberty
skverr, T think mvsdf warranled in saying,
that the justice andlawfuhiess of every species
of it, as it is generally constituted, except the
limited one rounded on the commission of
* throughout all the huid, to all the inhabitanti
* thereof.' Lev. xxv. 8—10.
« The manumission of the Hebrew slave on
the seventh year, was provided for by the other
law. Under the expression, therefore, of all the
inhabitants, foreign slaves must be eompro*
bended ; for none but foreign slaves could re*
main to be manumitted in the fiftieth year.
** My brds, there is a circumstance not
touched upon by my rev. brother ; but there is
a passage in tlie law, which 1 have always
considered, as a strong argument of the lenity,
with which slaves vrere treated among the
Jews, and of the efficacy of the provisions the
law had made, to obviate the wrongs and iniu*
ries to which the condition is obnoxious. — ^My
lords, I am afraid I cannot, by memory, refer
exactlj^ to the place. But the noble earl there,
with his BiUe, I am sure will have the good-
ness to help me out and turn up the passage
for me. Mj^ lords, it is a passage, in which
the law provides for the casA. of a slave, who
should be so attached to his master, that when
the term of manumission, fixed by the law
shouM arrive, the slave slionid be disinclined
to take advantage of it, and wish to remain
with his master. And the law prescribes the
form, in such case to be used, by which the
master and the slave should reciprocally bind
themselves, the slave to remain with bis master
for life, and the master to maintain him. This
I have always considered as a strong inUicatioo
of the kindness, with which slaves were treated
among the Jews ; else whence should arise that
attachment, which this law supposes ?" [Query
if the bishop had in his mind the begioDing of
the 21st chapter of Exodus, if so, the words
are ' he shall serve him for ever.']
** But we are all in the wrong, it seems — my
rev. brother and I*-we reason from specious
premises, but to false conclusions. The noble
eari has produced to your lordships a pasMge
in the Leviticai law, which enacts that the
foreign slave should be the property of bis
master for ever. Whence the noble earl con-
cludes that the perpetual servitude of foreign
slaves was actually sanctioned by the law.
But, my lords, I must tell the noble earl, and I
must Ml your lordsliips, that the noble earl hao
understanding at all of the technical terms of
the Jewish law. In all the laws relating to the
transfer of property, the words ' for ever,*
signify only * to the next jubilee.' That is
the longest * for ever' which the Jewish law
knows with respect to property. And this law,
which makes the foreign slave the property of
his master for ever, makes him no louger tho
master's property than to the next jubilee.
And, with the great attention the noble earl hao
given to the laws and hiatory of the Jews, ho
moat know, that when tboy were carried into
eaptiviiy, they were loldby thwr prophets, that
The Negro Cate.
citil Mriely, ii ai Icasl doublfot ;
kwfiil, audi circumttancei
tke it 311, an selJoD) coucur,
^^ . B jiirt cominencenieDt of
it M| pooiblr ; sod ihat Ibe oppressive
■•MI ia whkb it bu geiwrnti)' commeDcei),
•rcTvd inf«iii ncc^Naty lo enforce ils con-
■■MM, aod the tnischier* eusuiiit;' fmiD llie
fOTMNlrMt of il, funub Tery tirnug presump-
■MJHwuM ill Justtcc. tnil al all erenlBeiiuce
i* hMDanily aud policy ol' those stales, in
itith Iha MM of il 19 III) longer tolerated.
J „f I, But howecer reasonable il may
• ■^i^w be lo Joobt the justice of domestic
^5 te ila*ery, linwcTer conrinced we
^"■^ may be of ils ill effecis, it miiEt be
tmtmmi, thai ibe practice is aulieni, and has
Ida ahniMl nniienal. Its begiooing tnay be
Imd 6vm Ili« retnoleit |ieriad, in which there
wc »my ItBCM of the history of mankind. It
— im n I it in ihe harbaroiis slat« of society,
■ri wM ntalsed, efeu wlieii men were Tar ad-
wriit in diilizalitin. The nnlinns of anti-
faiy OMMt fiiiDiiUB for cuunleiiincing the
MrBof doMTilioalavery were Ibe Jews, the
OwA*. till! Romans, atxl the antieot Ger-
MM^r) ; «E)King«i all of whom it preTailed,
!•■■ Tarioua<le^ee> nrEeTerity. By thean-
linlG«TniftB* il was conlinued la the connlriM
tmf «*cr-nRi i and so was trauamitled to the
j_ rariuua kinird<"ns aud italn,
Mnaa which arose in Europe out nf the
■^•^ ruin* of Ihe lliiman em|iire. At
tm^lli b(M*«*«r it fell into decline in mott
MS of Knrope ; and amongst Ihe Tarious
•Mof ibe Crimea which drew down Ihatjudg-
MM^Mt tbeni, was their gross neglect and
mJMm of these merciful laws respecting
^■■MoaiMi. And that, in contempt and de-
teeraf ibe latr, il had been ihtir practice to
hMlbcir ForeigD slaves >n lervilude beycnd
teyMr of jubilee."
- ■ ■ -My lords, allhottgh ivehare noex-
(fail prabilHtiun of tho slave trade in the New
nMMnral, we have a moat express lejirobati on
If iha Irsd* tn alnves, even in that milder form,
« •hidh it auhftisled in ancient times. Such
a nyfrAatiaa of it as leaves no believer al
Bnty tv a*j. ihat llir shve trade is not coo-
iSMBgJ by lli« goapel. The rKverend prelate
a^ Mc'lia* citrd the (Msaags [t Tim. i,
f— to) ■*> which St. 1*8111 nienlions ' men-
Milan* Bmnaig tht f[realrst miscreanlt. * Men-
iailiis' ao «• read in our En^li«h Bilite.
Rol lh« iBMil ill the original is Attfu-niieatt.
ttlmrihcir '* Kuraliy a ' date trader,' and
ki Mbrr tinnl in the Eniflish lauguatie, bul
daw iraihrr, fireriaely readers it. Il waa I'n-
^■i4 Mv irchnlMl name for a lUv e trader in
•■ ttrie h-."
(r) It apiwara by CKMr and Taciloa, that
haaacirai Gmaan* had ■ hind at slates be.
%n th^y rmsitralf^ front tlirir own courilry.
WC«a.ilc Ball. Gall. lib. 6, cap. 13, el Tac.
it Mm. (ierman. cap. 114, M Si. et Fulgieaa.
4«aL avrvttr. af. Cmui. bb. 1, C8[>. I.
KjroL. XX.
A. D. 1771.
caaan, which contributed to this alteration,
none were probably more effectual, than ex-
perience of the diaadvanlages of slaiery ; iha
difficulty of coQijnuing il ; and a persuasion
that llie cruelly and oppression almost neces-
sarily incident lo il were irreconcilable with the
pure morality of the Christian dispensation.
The history of iu declioo in Europe has lieea
traced by many eminent writers, parliculsrly
BodiD(!), Albericus Gentilifi (f), Potgiesserus (u).
Dr. Itoberlson {b'), and Mr. Millar (.r). It i»
sufiicienl here to say, thai Ihis great change
began in Spain, according lo Bodin, about tha
end of the eighth century, and vras becoma
general before Ibe middle of the fourteenth
century. Bartolus, Ihe most famed commen-
tator CD Ihe civil taw in that period, represents
slavery as io disuse ; and the succeeding com-
mentators hold much the sane language.
However, they must be understood with many
resLriciboi and exceptions ; and uot to mean,
that slavery was completely and universally
nboli.ched in Europe. Some modern civilians,
nol sufficiently atiendiog to Ihis circum!lance,
rather too hastily reprehend their predecessors
for representing slavery as disused ju Europe.
The truth is, that the ancient species of slavery
bj| frequent emancipalions became greatly di-
minished in extent ; the remnant of il was con-
siderably abated io severity ; the disuse of the
practice of enilatiog captives taken in the
wars between Christian powers assisted in pre-
venting the future increase of ilom est ic slavery ;
and in some countries of Europe, particularly
England, a still more effectual method, which
I shall explain herealler, was thought of toper-
feet llie BUppressina of il. Such waa the ex-
piring Blale of domestic slavery in „„;,j, ^,j^
Europe at Ibe commencement of chiiIciIi.rt
the sixteeolh century, when the '° '■'"'""■
discovery of Ameiica and of the western and
eastern coasls of Africa gave occasion lo tb«
inlroduclion of a new species of slavery. It
took its rise from the Portuguese, who, in order
In supply the Spaniards wilb persons able lo
■uslaio the fatignc of cultivating their new
poEseabiuns in America, particularly Ihe islands,
opened a trade between Africa and America
for the sale nf negro slaves. This ditgraceful
commerce in Ihe human apecies is said lo have
beguu in the yeiir 1506, when Ihe fifoi impor-
tation of negro slaves waa mnde into Hitpaiiiola
from the Purtagiiese settlements on Ihe western
ooaslB of Africa (y>. In 1540 llie emperor
Chariea the tilth endeavoured lo slop the pro-
gress of the negro slavn-y, by orders that all
(i) See his book De KepublicA, cap. 5, da
(t) Jur. Gent, csp.de sertilule.
(u) Jur. Germ, de statu acrvorum.
(t/) Life of ibe emperor Charles Ihe Hb,
TOl. 1.
(x) Observations on ihe ilistinrliDn ofrankt
in civil sociely. See alio Tayl. Ekm. Civ. U
•34 to 4S9.
(y) Ander. Hist. Comm. T. 1, p> 330.
S5] 12 GEORGE III.
ulavef in the American itlee should be made
free; and ihey were acconiinfriy nannmitted
by La^fasca the (j^OTeroor of the country, on
condition of contiouinfif to labour for their nas-
tert. But this attempt prored umueceesful,
and on. Lagasca'a return to Spain domestic
8la?ery re? i?ed anti flourished aa before (2).
The eipedient of havin§f slaves for labour in
America was not longf peculiar to the Spaniards ;
being afterwards adopted by the other Euro*
peansy as they acc^uired possessions there. In
consequence of this general practice, negroes
are become a very considerable article in the
commerce between Africa and America ; and
domestic slavery haa taken so deep a root in
most of our own American colonies, as. well as
in those of other nations, that there is little
probability of ever teeing it generally sup-
pressed.
hm attempt Here I conclude my observa-
to^imuxtuGc^^ tions on domestic slavery in ge-
wttnnSto neral. 1 hare exhibited a view
ImiD^". "' o^ >(• nature, of iu bad tendency,
of its origin, of the arguments tor
and against its jusiice,of its decline in Europe,
and the introduction of a new slavery by the
European nations into their American colonies.
1 shall now examine the attempt to obtrude
this new slavery into England. And here it
will be materialto observe, that if on the de-
clension of slavery in this and other countries
of £uro|ie, where it is discountenanced, no
means had been devised to obstruct the ad-
mission of a new slavery, it would have been
vain and fruitless to have attempted superseding
the ancient species. But I hope to prove,
Arfomeoti to ^^^^ ^^r anccstors at least were
prate,^tbit Dot aoshort-sighted ; and that long
EniiaV*in <^ uninterrupted usage has esta-
blished rules, as effectual to prevent
the revival of slavery, as their hu-
manitv was successful in once suppressing it.
I shall endeavour to abew, that the law of
England never recognized aoi^ species of do*
mestic slavery, except the ancient one of vil-
leoage now expired, and has sufficiently pro-
vided against tne introduction of a new slavery
under the name of villenage (a) or any other
denomination whatever. This proposition I
hope lo demonstrate from the followmg consi-
derations.
1. ArnBCBt ^* ^ apprehend, that this will ap-
rioi the pear to be the law of England from
Mktau title the manner of making title to a
•f • flllelD. ^iii^n.
The only shvery our law-books take the
least notice of is that of a -villein ; bv whom
was meant, not the mere tenant by villein ser«
vices, who might be free in his person, but the
villein in blood and tenure; and as the English
(4) See Bodin de Republic, lib. 1, c 5.
(a) Villenage is used to express sometimes
Iha tenure of lauds hehl by villeiii-servicM. and
■onetimes th* ptnonal bandage of tha viUein (
km Uwocfhont thia aigiuBHt it ii appliid ta
The Negro Cote*
[36
not idrait a
■cv lUrcnr.
\ I ■
1 .1 .
li
law has no provisioaa to regulate any othex
slavery, therefore no slavery can be lawful in
England, except such as will consistently fail
under the denomination of villenage.
The condition of a villein hiul
most of the incidenU which 1 have ^ ^^
before described in giving the idea
of slavery in general. His service was uncer-
tain and indeterminate, such as his lord thought
tit to require; or, as some of our aocieni
writers {b) express it, he knew not in tlie evening
what he was to do in the morning, be was
bound to do whatever he was commanded. He
was liable to beating, imprisonment, and every'
other chastisement his lord miffht prescribe, efr
cept killing and maiming (c). He was incapable
of acquiring property for his own benefit, the
rule being * quicquid acquiritur servo, acquiritur
domino* (d). He was himself the subject o£
property ; as such saleable and transmissible.
If he was a villein regardant, be passed with
the manor or land to which he was annexed,
but might be severed at the pleasure of hia
lord U) If he was a villein in gross, he was an
hereditament or a chattel real according to his
(h) See the extracts from them in Co. Litt
116, b.
(e) See Terroes de la Ley, edit, of 1567»
voc Villenage — Old Tenures, can. Villenage—
Fitzh. Abr. Coron. 17.— 2 Ro. Abr. 1.— S Jnat
45.— and Co. Lilt. 136, 197.
(d) Co. Litt 117, a.— The words, in pleads
ing seizin of villein-service, are very exprcs*
sive of the lord's power over the villein's pro*
perty. In 1 £. 2, 4, it is pleaded, that the
lord was seized of the villein and his ancestors
* come affaire rechat de char et de ssnk et de
* fille msrier et de eux tailler haut et has, 5cc.*
The form in 5 E. 8, ]57i is, * come de nos vi«
* leynes en fesant de luy notre provost ea
' p*nant de luy rechat de char et de saunk et
* redemption pur fille et fits marier de luy el
* de ces aunc et a tailler haut et haa a notre
* volente.' In the first of the above fomoe
there is evidently a misprint ; and the reading
ahould be * a faire rechat* instead of * affaire
* rechat.' As to the word * provost' in the
second form, it seems to signify * plunder,' and
perhapa the print should be * proie' or ' proye*
instead of * provost.' I was led to this con-
jecture by the following proverb iu Cotgrave's
French Dictionary, * qui a le vilain u a as
* proye.' See Cotgr. edit, of 1673, voc. proye.
However, in the Latin Entriea the woni • pro*
* vest' is translated ' propositum,' which in a
barbarous sense of the word may be construed
to signify * will' or * pleasure,' and will make
the passage intelligible. In aome Entries * prcH
* vest' is transUted * propositus ;' but this word
cannot be understood in any sense that will
make this use of it intelligible.
The forms of pleading aeisin of villein -aer«
vieaa in the Latin Entries are very aimilar to
those 1 ksve sstrsetsd from the ycsr^books.
8ss RssL Entr. 401. a.
(%) UttssoLlSa.
sn
The N^ro Case*
M^s inteml ; bein^ detcendible to the heir
vhcretbe lord wms ibeolote owner, and trans-
BiMMt to the eieeutor where the lord had
eoly ■ term of yean in hiro (/). Lastly, the
way esteDded to the iasne, if both parents
wet filletBs, or if the father only was a rillein ;
m kw dcriviosr the condition of the child from
ia if the father, contrary to the Roman law, in
fMeh tho rolo wnptuius $equitur ventrem (g^.
The origin of villenage is princi-
3^ ^ pally (k) to bederired from the wars
between our British, Saxon, Danish
M Nemaii ancestors, whilst they were oon-
tadiar fi»r the possession of this country.
isdfeFitsherbert, in his reading on the 4th of
Uw. 1, stmt. 1. entitled Extenta mttnerUf sup-
psas fiBeiiage to ha?e commenced at the Con-
sseit, by the distribution then made of the
■rfdtod lands and of the vanquished inha-
lilsnls icsident upon them (j) . But there were
boDdmeo in England before the Conquest,
are by the Anglo Saxon laws regulating
y and therefore it would be nearer the
Inth to attribate the origin of villeins, as well
litbe preeediog wars and revolutions in this
i to the efiects of the Conquest (k).
After the Conquest many things
•^ happily concurred, first to check
the progress of domestic slavery in
Earlaad, and finally to suppress it. The cruel
CBStoa c€ enslaving captives in war being abo-
iiibedv from that time the accession of a new
nee ef villeios was prevented, and the huma-
liiy, policy, and necessity of the times were
— hnallj wearing out the ancient race.
''nses, DO doubt, manumissions were freely
; bat they probably were much oftener
(f) Bro. Abr. Villenage, 60.^^o. Litt. 117.
ff) Co. Litt. 123. Artieatly our law seems
It ^ave been very uncertain in this respect.
8k Gknv. lib. 5, c. C. Nirr. c. 2, s. 38. Britt.
c 3L Bot the writers in the reign of Henry
ibe «tb agree, that our law wss as here repre-
■sted ( and from the plea of bastardy, which
*M held to bo a peremptory answer to the al-
Sm of villenage so early as the reign of
ard the 3d, 1 conjecture, that the law
vsi settled in the time of his father. See
Fwteac. Land. Leg. Angl. c. 4^. Lilt. sect. 187.
—43 E. 3, 4, and Bro. Abr. Villenage, 7.
(kj I do not say wholly, because probably
tbcre were some »>laves in England before the
fins arrival of the Saxons ; and also they and
the Danes might bring some few from their
ova country.
(i) See the extract from Fitzherbert's read-
■g io Barringt. Observations on Ant. Sut. 2d
«<a. p. «37.*
(k) See Spelra. GUms. voc. Lszzi et Servus.
IwHi. OQ Gavelk. 65, and the index to Wiik.
Uf. Saxoo. tit. Servos.
* Cooeeniiog the antiquity of villenage, see
— '^' -m "A Discourse of Tenures," said
to be wntieo by sir Walur Raleiffb, published
• GMli*i CoUoetaiiea Cmu^ ^ ol. l, p. 60.
A. D. 1771. p8
extorted during the rage of the civil wars, so
frequent before the reign of Henry the 7th,
about the forms of the constitution of the sue*
cession to the crown. Another cause, which
greatly contributed to the extinction of villen-
age, was the disconrsfjement of it by the courts
of justice. Tbejr always presumed in favour
of liberty, throwing the ' onus probandi' upon
the lord, as well in the writ of Homine Reple«
giando, where the villein was plaintiff, as in
the Native Habendo, where he was defen-
dant (/). Nonsuit of the lord after appearanco
(I) See Lib. Intrat. 176, a. 177, b. 6c Bro.
Abr. Villenage, 66, It seems however, that if
after a Native Habendo brought by the lord,
the villein, instead of waiting for the lord's
proceeding upon it, sued out a Libertate Pro-
banda to remove the question of villenage for
trial before the justices in eyre, on the return
of it he was to produce some proof of his free
condition ; and tbi^t if be failed, he and his
pledges were amerced. But this failure did
uot entitle the lord to any lienefit from bis Na-
tive Habendo, and therefore, if be proceeded
in it, and could not prove the villenage, the
judgment was for the villein ; or if the lord did
not proceed, a nonsuit, which was equally fatal
to tna lord's claim, wa^ the necessary canso>
qnence. Sea 47 H. 3. It. Dev. Frtz. Abr.
Villensge, 3^ In truth, the rfqirisition of
proof from the viliein on the Libertate Pro-
banda, and the amercement for want of it,
seem to have been mere form ; for, as Fits*
herbert vays, in explaining the effect of the
Libertate Probanda, ** the record shall be sent
before the justices in eyre, and the lord shall
declare thereupon, and the villein shall mabo
his defence and plead thereunto, and the viUvin
shall not declare upon the writ de Libercato
Probanda, nor shall any thing be done there-
upon ; for that writ is but a Supersedeas to
surcease for the time, and to ailjourn the record
and the writ of Nativo Habendo, beibre the
justices in eyre." Fitz. Nat. Br. 77, D. Upon
the whole therefore it may I think be safely
asserted, that in all cases of filleoage the
* onus probandi' wan laid upon the lirrd.
The several remedies sgainst abd for one
claimed as a villein are now so little under-
stood, that perhaps a short account of them
may be acceptable ; more particularly as, by
a right conception of them, it will be more easy
to determine on the force of the argument
drawn against the revival of slavery from the
rules conierninflf irillenak^e.
The lord's remedy for a fugitire villein was,
either by seizure, or by suing out a writ of
Nativo Habendo, or Neitty, as it is some-
times called.
1. If the lord seized, the villein's most ef-
.fectual mode of recoveriui; lilierly was liy the
writ of Homine Keplegiaodu ; m Inch had i;reat
advantage over the writ of Habeas Corpus.
In the Habeas Corpus the returu ciuinot be
contested by pleading agaiost the irutli of it,
and consequently on a Hftbeaa Corpus the
Si)] 12 GEORGE IIL
in a Nalivo Hibendo, which was the writ for
asserting the title of sUfery, was a bar to an-
other Nativo Habeodo, and a perpetaal eofran-
chiaemeot ; but noosuit of the fillein after ap-
pearaoce id a Libertate Probanda, which was
one of the writs for asserting the chim of liberty
against the lord, was no bar to another writ of
the lilce kind (m). If two plaintifis joined in a
Nati?o Habendo, nonsuit of one was a nonsuit
of both ; but it was otherwise in a Libertate
question of libertv cannot go to a JQiT for trial ;
though indeed the party making a raise return
b liable to an action for damages, and punish-
able by the Court for a contempt; and the
Court will hear affida? its against the truth of
the return, and if not satisfied with it restore
the party to his liberty. Therefore, if to a
Habeas Corpus villenage was returned as the
cause of detainer, the person for whom the writ
was sued at the utmost could only hare ob-
tained his libertv for the time, and could not
bare had a regulsr and final trial of the ques-
tion. But in the Homioe Replegiando it was
otherwise ; for if villenage was returned, an
Alias issued directing the sheriff to replevy the
party on his giving security to answer the
claim of villenage afWrwards, and the plaintiff
might declare for false imprisonment and lay
damages, and on the defendant's pleading the
villenage had the same opportunitv of contest-
ing it, as when impleaded by the lord in a
Natif o Habendo. See Fitzh. N. Br. 66. F.
et Lib. Intrat. 176, a. 177, b.
8. If the lord sued out a Nativo Habendo,
and the villenage was denied, in which case
Ihe sheriff could not seize the villein, the lord
vms then to enter his plaint in the county
court ; and as the sheriff was not allowed to
try the question of villenage in his court, the
lord could not have any b^efit from the writ,
without removing the cause bv the writ of
Pone itito the King's- bench or Commou Picas.
[For the count, pleading and judgment in the
Nativo Habendo afler the remo? al, see Rast.
£ntr. 436, 437.] It is to be observed, that the
lord's right of seizure continued notwithstand-
ing his having sued out a Natifo Habendo,
unless the Villein brought a Libertate Probanda.
This writ, which did not lie except upon a
Natif o Habendo previously sued out, was for
remofal of the loitl's plaint in the Nativo Ha-
bendo for trial before the justices in eyre or
those of the King's -bench, and also for pro-
tecting the villein from seizure in the mean
time. This latter effect seems to have been
the chief reaaon for suing out the Libertate
Prolmnda; and therefore afler the 85th of
Edw. 3, Stat. 5, c. 18, which altered the com-
mon law, and gires a power of seizure to the
lord, nntwithstaading the pendency of a Liber-
tate 'Probanda, that writ probably fell much
into disuse, though subsequent cases, in which
it was bntught, aie to be found in the year-
books. ISee Fitzh. Nat. 77| to 79» and 1 1 Ben.
4, 49.
(m) Co. U»L 131.
Z%e Negro Case.
Probanda (n). The lord could not proeecoli
more than two villeins in one Nati? o Haben
but any number of ? illeins of the same b
might join in one libertate Probanda (o). ]
numissipns were inferred from the sli^fc
circumstances of mistake or negligence m
lord, from every act or omission which h
refinement could strain into an acknowk
ment of the villein's liberty. If the lord ve
the ownership of lands in the villein, rece
homage from him, or gave a bond to him,
was enfranchised, goffering the villein tc
on a jury, to enter into religion and be |
fessed, or to stay a year and a day in anc
demesne without claim, were enfranchisemc
Bringing ordinary actions against him, joii
with him in actions, answering to his act
withoot protestation of villenage, iuiparlinf
them or assenting to his imparlance, or snl
ing him to be vouched without counter-pleai
the voucher, were also enfranchisem
by implication of law {p). Most of the i
structive manumissions I have mentioned i
the received law, even in the reign of the
Edward (y). I have been the more partij
in enumerating these instances of eztraordii
fa? our to liberty ; because the anxiety of
ancestors to emancipate the ancient villeini
well accounts for the establishment of any r
of law calculated to obstruct the introdoctio
a new stock. It was natural, that the s
opinions, which influenced to discountem
the former, should lead to the preventioi
the latter.
f shall not attempt to follow vil-
lenage in the several stages of its J^^p
declme ; it being suflBcient here to
mention the time of its extinction, wbicfc
all agree, happened about the latter en<
Elizaoeth's reign or soon afler the accessio
James (r). One of the last instances, in wl
villenage was insisted upon, was Crouch's <
reportMl in Dyer and other books (s). An
try having been made by one Butler on si
lands purchased by Crouch, the question i
whether he was Butler's villein regardi
and on two special verdicts, the one in ej
ment Mich. 9th and lOtb Eliz. and the o
in assize Easter 11th Eliz. the claim of
lenage was disallowed, one of the reasons g
for the judgment in both being the wsn
seizing of the villein's person within 60
years, which is the time limited by the 32
Hen. 8, chap. 8, in all cases of hereditam
(n) Co. Litt. 139.
(o) Fiizh. Nat. Br. 78, C. D.
(p) See Litt. sect 803 to 209, and 3
Abr. 735, 736, and 737.
(q) See Britt cap. 31, and Mirr. ca|i
sect. 38.
(r) See sir Thomas Smith's Commonwe:
b. 2, c. 10, and Barringt. Obsery. on Ant. 2
Sd ed. p. 333.
(t) See By. 366, pi. 11, and 383, pi. 3^
(i) Accord. Bro. Read, on Ibe Stat
limitit 3S Hm. 8, p8ge ir.
The Nfgro Case.
__ ri hfP'B'^P^o'' H- Tbis is generally
mik H k*T« been the Imi case of villenBge ;
Ia ttera arc fnar nibnetiiient casea in jirint
Ohsm in UiUry 18th of Elizabeth (bi);
^Mfcr WM« a jutlgment in Easter Ist ol
iMMfi) : Ihc thini, which was nerer deter-
■M^ h»pp«n«d ia Trinity 8tli ol' James (y) \
■<** iiiunhHMsn late as Hilary IMti of
Jmm (a). From the lath nf James (he Ist,
lMf«i»n> Ibaa 150 years a^, the claim of
dwafv hft* not bren beard of in our courts
•fJMlier ; wiil nntliiog can be mure notorlnua,
tm Hmt Ibe Tsce of |nnjuHB, trim were onue
ia rii)eets ol' it, was about lliat time coni-
Ij v*m out by the continual and united
thm af dealbi and manumissions.
■ Iboo^ villenafe itieir is abielete, yet
bWuiifcity Umm rules, by which the claim of
Iwani^lated, are iiot yet buried in obliviuo.
IhtNtllc iBtfastry of our anceatora baa tranS'
MUri; nor Im us their posterily despise tbe
Mcnnd leii[Bcy. By a strange progress of
!■■•■ kAin, the roemory uf slavery expired
tarn fiiraUtcs ooe of the chief obstacles to the
(■udMJtien afittvery attempted lo he revived ;
mi At renffwMK reliijuea of llic learning re-
Ittt lo vUtma^, so Inn); consigoed lo gratify
ia ia*Mtig«ting' curiosity of tbe anliquary, ur
■ari ■■ a vpleodid appendage to lbs orna-
■oM «f tfa* ochnlar, tnusi oovr be drawn forth
-•■a Ibartr fsitliful repositories tor a more noble
r|«a«; to inform and gnide (he sober judg-
HI af tbio Court, aod as 1 trust 10 preserve
■ armultty from the miseries ol' domeslic sla-
wy.
^^ Littleton (a) aaya, etery lillein
«M> m either ■ villein by title of pre-
aJS^ acriptioa, to wit that he and his an>
oMIora hj*e been f illeius time oul
^ Faa'ij , or he ia a lillein by his own con-
■^^ m • court of record. And in another
fhta ti), bis description of a villein res^rjanl
Md «l a sUkin in grosa shews, that title can-
■■!■ nod* in eilhef without prescription or
csafa^MS. Time whereof no memory runs
liteaootrary, is on iotepurable incident to
(•try f«*aon|rttoa (c) ; and therefore, according
ts LwMod'* account of villenai^, tbe loi^
B*M pravc tlie slavery ancient and immemo-
nl ; 0( ibc 'tlleio must solemnly confess it lo
I* an io s court of justice. A alill earlier
"ler Uy» down Ibe rule in terms equally
:> ) Before this statute of Hen. the 8lh, the
-iir nf KniiBlioa seems to have lieen the coro-
i^awuf Hen, 3, asappeara hy the form of the
Xmv« H*b«iMlo ; though ia oilier nrits of rii;ht
baHniutimi by 31 E. 1, e. 39. was from the
«Ma»ae«mrut nf the rrtgu of Uich. tbe 1st.
(m) 8m Co. Uotr.400, b.
O) Yrf». «.
tl} This case is only tu be fnand ia
"~ ' '• AbHilgment, til. Villenage, pi. S3.
A. D. I77I. [;«
strong. No one,)ay« Brition (d), can be a villein
except of ancient naliviiy, or by acknovrledg-
menl. All the proceedings to cases of tiltena|re,
when contested, conform lo this idea of remote
antiquity in the slavery, and are quite irrecoQ-
cileable with one of modero coinmenL'emeut.
1. The villein in alt such suits (r) between
him and his lord was stileil tialwus ax well os
villanits; our Bncienl(,/") writers describe a
female slave by no otber name than that of
neif; and the technical name of the only writ
in the law for ihe recovery of a villein is equal-
ly remarkable, being always called tbe Nativo
Habcndo, or writ of neitiy. This peculiarity
of denominalion, wbiuh implies that villenage
ia a slavery by birth, mi)[bt perbapa of itself Be
deemed too slight a, founilBlioii tor any solii
argument ; but when combined with uiher cir-
cumstances more decisive, surely it is nni
without very considerable force.
3. In pleading villenage where il had not
been confessed on some former occasion, Ihe
lord always founded bis title on prescrtplion.
Uur year books, and books of entries, are full
of the forms used in pleading a tide lo villeins
regardant. In the Homine Replegiando, and
other actions where (he plea of villenage waa
tor the pur|iose of shewing the pluinlilTs dia-
abiliiy lo sue,. if ihe villein was r^iinlant, the
delendani alledq[ed, that he was seized of such
a manor, and that Ihe plainiifFaiid his ancestors
liad been villeins belonging to the manor lime
oul of mind, and that Ibe defendanl and hio
ancestors and all those whose estate he had in
the manor, had been seized uf the plaiotilTaod
all his ancestors as of villeins belongiug to ii (g).
In the Nativo Habendo the form of makiog
tide to a villein regardanl was in substance the
aame(A}. In fact, regardancy necessarily im-
plies prescription, being where one and his an-
cestors have lieen anneited lo a manor time oul
ofihememory of man (i). As to rilleinsin gross,
tbe cases relative lo thera are very few ; and I
am inclined to think, that there uever was any
great number of them in England. Tbe au-
thor of tbe Mirroir {k), who wrote in Ihe reign
of Edward the 3d, only mentiotis villeins regard-
ant : and air Thomas Smith, who was secre-
tary of stale Id tbe reign of Edward the eih,
says, that in his time be never knew a villein
in grass thrnugboul the realm (/), However,
(d) ' Nul ne poit estre villeyn fortque d«
■ auncienne nalivile ou par recognisance.*
Britl. Wing. ed. cap. 31, p. 78.
(e) tSee the form ol ihe wrils of Nalivo Ha-
bendo and Liberiote Probanda, and also of the
Alias Homine Keplegiando, where on the Aral
writ the shentf reiurus the claim of villenage.
(f) Brit. cap. 31 ic Lilt. sect. 1B6.
(g) Het Itaat. Entr. til. Homine Reple-
giando, 373, Ac Lib. Inint. 56.
(A) See tbe farm in Ub, Intnii. 97, 3c Rast
Entr. 401.
CO This ia agreeable lo what Liltleton sayfl
in sect. IQ'J, (k) Mirr. c. 3, g 38.
(I) Smiib's Common weal lb, b. 3, c. 10<
IS GEORGE UL
after % loof March, I do fiod placet ia tlie year-
books, where the form ofalledgini^ villenage io
groM is expressed, not io full terms, but in a
general ws^ ; and io all the cases I bare yet
aeen, the villcosge is alledged in the ancestors
of the person against whom it was pleaded (m),
and in one of them the words * time beyond
memory' (n) sre added, lint if precedents bad
been wsnting, the authority of^ Littleton, ac-
cording to whom the title to fiJIenage of each
kind, unleM it has been confessed must be by
prescription, would not hs?e left the least room
tor supposing the pleading of a prescription
less necessary on the claim of ? illeins in gross
than of thoie regardant
3. The kind of eridence, which the law re-
quired to prove villeoage, and allowed in dis-
£roof of it, is only spplicable to a slavery in
kiod and family, one uninterruptedly trans-
mitted through a long line of ancofttors to the
persfm against whom it was alleged. On the
lord's part, it was necessar;^ that he shoulil
prove the slavery against his villein by other
villnnv of the same blood (o), such as were
descmded from the same common male stock,
and would acknowledge themselves t illeins to
the lord ( p ), or those from whom he derived
(m) See 1 E. 2, 4.-5 E. S, 15.— 7 £. 8,
S49, & 11 E. 8, 344. In 13 E. 4, 8, b. pi. 4, &
3 b. pi. 1 1, there is a case in which villenage in
groiis is pleaded, where one became a villein in
gross by severai^ce from the manor to which he
had been regardant. This being the only case
of the kind I ha ye met with, I will state mo
much of it from the year book as is necessary
to shew the manner of pleading. In trespau
the defendant pleads, that a manor, to which
the ptaintifT's father was a villein regardant,
was given to an ancestor of the defendant in
tail; and that the manor descended to Cecil
snd Catharine ; and that on partition between
them, the villein with some lands was allotted
to Cecil, and the manor to Catharine ; and then
the defendant conveyed the villein from Cecil
to himself as heir.
(n) UK. 8,344.
(o) See Hro. Abr. Villenage, 66 Reg. Br.
117, a. Old Nat. Br. 43, b. Fitz. Abr. Ville-
nage, 38, 39. A bastard was not receivsble to
prove villenage, 13 £. 1. It. North. Fitzh.
Abr. 36, 6c Britt. Wing. edit. 88, a.
(p) in Fitzlierbert's Natura Brevium, 79.
B. It is said, that the witnesses must acknow-
1ed|k:e themselves villeins to the plaintiff in the
Nativo Habendo ; and there are many autho-
rities which favour the opinion. See Glanv.
rd>. .'i, c. 4. Britt Wing. ed. 81, a. 19 Hen. 6,
3'i, b. Old Tenures, chap. Villenage; and
the form in which the confession of villensge
bv the pisintiff's witnesses is recorded, in Rast.
iSntr. tit. Nativo Habendo, 401, a. However,
it mini be eoofetscdi that io Fitsberbert the
opinion tsdeUfertd with a qu^n; aod it is ao
iiwpaocilaMo wllk Um kiA Mhtof graotioc
vUWMh* "^ iso.;«Dtl»l,
The
Case,
[*4
his title ; and at least two witncnes (f) of this
description were requisite for the purpose.
(q) Fitzh. Nat. Br. 78, H. & Fitzb. Abr.
Villenage, b6 5t 37. — Also Briiton says, * no
* masle sauna plosurs nest mie receivable.'
Britt. Wingate's ed. p. 88. It is remarkable
that femalo, whether sole or married, were not
receivable to prove villenage against men.
' Sannk de un home ne puit ne doit estre trie
' par femmes.' Britt. Wing. ed. p. 88. The
reason ssttigned b more antient than polite. It
is said to be ' pur lour fira^lte,* and also be>
cause a man * est pluis digoe person que una
M'eroe* 13 £. 1. Fitzh. Abr. Villenage, 37.*
* " Antiently in Scotland the testimony of
women was not admiited in sny case. * Ano
* woman may not pass upon assize or be wimess,
* nather in ony instrument or contract, nor zit
* for preiving of ane persoun's sge. Neverthe-
* less gif tliair be ony contraverser tuiching the
* age of ony persoun, the mother or the nurice
( may be ressavit as witnessis for preiving thair-
* of.' " Balfour's Practicks, p. 378.
« By our constant usage, women are not
admitted as iostrumentary witnesses, and as
universal custom is law, so 1 doubt not but it
will be a nullity in any writing that is attested
by witnesses, who are both or even one of thena
women. And though the act 1681, mentions a
subscribing witness with the masculine particio
(he), yet that without the aubsequent usage ia
not exclusive of women/' Bankton's Inst. b.
1, tit. 1, sect. 7.
** Of old, women were rejected in most cases,
but they are for most part admitted, unlets
where the parties ought to have called wit-
nesses, for then they have themselves to blame
that did not make use of others ; and therdToro .
women are altogether incompetent witnesses to
deeds of parties, testaments, or instruments of
notaries.'* Bankton, biNik 4, tit. 33, a. 80.
So Stair (book 4, tit. 43, s. 9,) says, tba( in
civil cases women are not to be admitted aa
witnesses, except necessary.
Sir George Mackenzie (Probation by Wit-
nesses) says, ** Women regular iter are not wit*
nesses, neither in civil or criminal cases with as,
nor should they make as much faith with ua, •*•
criminalibut. The reason why women are ex-
cluded from witnessing, roust be either that
they are subject to too much compassion, and
so ought not to be more received in criminal
cases, than in any civil cases ; or else the law
was unwilling to trouble them, snd thought
it might learn them too much confidence, and
make them suliject to too much familiarity
with men, and strangers, if they were necessi*
tated to vsgue up and down at all courts, upoo
all occasions." See his Criminals, title 86, s. 4.
Erskine (book 4, tit. 8, sect. 88,) instructs
OS, that women were rather exempted than de-
barred from gif iog testimony.
Of the progress of the relaxation of this rule
I kaov nol or any dreumstantial history.
Mr* Hont (Gomiii. chap. 13,) and ibr. Bur^
«]
Tke Negro Can*
A. D. 1771.
\l»
Ntj, ID strict wu the Itw in thii respect, diat
ii the Natiro Habendo the defeo(|aiit was not
obtigcd to plead to the claim of villenage, un-
loi the lunl at Ihe time of declaring on his
tide bfogbt his witnesses with him into court,
mk iktf acknowledged themselres fillebs,
istfiwore to their coosangninitv with the de-
(Wnt (r) ; and if the plaintiff failed in ad-
Mag such prefioos evidence^ the judgment
if ibe eoart was, that the defendant should be
ftef for ever, and the plaintiff was amerced for
Ui&Jse daim (i). In other actions the pro-
Awtioa of soit or witnesses by the plaintiff,
pffvioosly to ihe defendant's pleading, fell into
dsose some time in the reign of Edward the
Ibrd; and ever since, the entry of snch pro-
taioa on the rolls of the court has been mere
fan, being always with an &c. and without
MouDgthe witnesses. But in the Natiro Ha-
hado the actual production of the suit, and
ilntbe examination of them, unless the defen-
hal released {t) it in court, continued to be in-
ifcasalvie CTcn down to the time when vil*
rage (a) expired.— Such was Ihe sort of tea-
linoay, by which only Ihe lord could support
ike liue of slavery ; nor were the means ot de-
faee on the part of the rillein less remarkable.
If he eouM prove that the slavery was not in
kiiUsed and family, heintitled himself to li-
boty. The atithor of the Mirroir (w) ex-
|RHly saySi that proof of a free stock was an
(fccnal iwlence against the claim of villenage ;
Hd even in the time of Henry the sec<»nd the
ha of Engfland was in this respect the same,
by the words of Glan? ille. In his
of ihe trial (x) of liberty, he says, that
(f > Fttz. Nat. Br. 78, H. Fitzh. Abr. Ville-
■STtSt LJb. Intrat. 97. llast. Entr. 401.
Aqr.fr. 87.
(i) In Fitzh. Abr. Villenage, 38, there is an
inUDce of such a judgment, merely for the
pliialiff*8 failure in the production of bis wit-
BC8CS at the time of declaring on his title.
(t) 8ee 19 H. 6, 39 b. a case in which the
4f(ni«lAot releases the examination of the suit.
(u) The last entry in print of the proceed-
is|s in a Native H abendo contains ibe names
•f cfae secta or suit produced, and their acknow-
kigairat of villeiiajB^e on oath. See the case
•f Jemey aflrainst Fmcb, Hill. 18 Eliz. C. B.
U. Efiir. 406, b. (w) jVlirr. c. 2, § 28.
(g) Glaov. lib. 5, c. 4.
Mt (Treatise on tar. branch, of the Crim. Law
if likasiand, chap. 17,) hare cited several cases,
isd quoted other authorities, from which it
ly^cars that the rule was recognized to so late
t ffnod as the beginoiiig of the 18th century.
hnaow abrogaled (how or when I have not
•wa distinctly staled) »» except*' says Mr. Bur-
••«, •* in ihe case of instruineotary witnesses,
yWe wofoen are in practice still excluded.
I kaow of iio case, bowerer. where this point
wii e»ev mrgoed, or receifed a decision : and it
•JnjAtful whether such an objecUon wouM
the iierson cluming it shall produce * plnres de
prozimis et consanguineis de eodem stipite
unde ipse ezierat exeuntes ; per quorum liber-
tates, si fuerint in curift recognitae et probatoe,
liberabitur it jogo servitutis qui ad libertatem
prochimatur.' But the special defences which
the law permitted against villenage are still
more observable ; and prove it beyond a con*
tradiction to be what the author of the Mirroir
emphatically stiles it (y), a slavery of so great
an antiquity that no free stock can be found by
human remembrance. Whenever the lord
sued to recover a villein by a Native Habendo,
or alledged villenage in other actions as a dis*
ability to sue, the person claimed as a villein
might either plead generally that be was of
free condition, and on the trial of this general
issue avail bjmself of every kind of defence
which the law permits against villenage ; or
he might plead specially any single fact or
thing, which if true was of itself a legal bar to
the claim of villenage, and in that case the
lord was \:ompellable to answer the special
matter. Of this special kind were the pleas of
Irastardy and adventif. The former was an al-
legation by the supposed villein that either him-
self or his father, grand-father or other male
ancestor, was bom out of matrimony ; and this
plea, however remote the ancestor in whom
the bastardy was alleged, was peremptory to
the lord ; that is, if true it destroyed the claim
of villenage, and therefore the lord could only
support his title by denying the fact of bastardy.
This appears to have been the law from a great
variety of the most ancient authorities. The
first of them is a determined case so early as
the Idth of Edward the second (x), and in all
the subsequent cases (dS the doctrine is received
for law without once being drawn into ques-
tion. In one of them (6) the reason whv bas-
tardy is a good plea in a bar against villenage
is expressed in a very peculiar manner ; for
the words of the book are, " when one claims
any man as his villein, it shall be intended al-
ways that he is his villein by reason of stock,
and this is the reason that there shall be an an-
swer to the special matter where he alleges
bastardy ; because if his ancestor 'was a Imis-»
tard, he can never be a villein, unless by sub-
(y) < Est subjection issuant de cy grand an-^
* tiquite, que nul franke ceppe purra estre trove
* per humaue remembrance.' Mirr. c. 2,
§28.
(x) 13 E. 2,408.
(a) Hill. 19 E. 2. Fitzh. Abr. Villenage,
32.— 39 E. 3, 36.-43 E. 3, 4—19 Hen. 6,
11 & 12.— 19 Hen. 6, 17.— Old Tenures,
chap. Villenage.- Co. Litt. 123, a. In the
case 19 H. 6, 17, there is something on the
trial of bastardy in cases of villenage, explain-
ing when it shall be tried by the bishop's certi-
ficate and when by a jury. See on the same
subject Fitzh. Abr. Villenage, 32, & Lib. Intrat.
S5, a. which latter book coatains the record of
a case where the trial was by the bishop.
(b) 43 £. 3, 4.
47] 12 GEORGE III.
■equent tcknowledgrment io a court of record."
The force of this reason will sppear fully on
recollection, that the law of England always
derives the condition of the issue from that of
the father, and that the father of a bastard
bein^ in law uncertain (c), it was therefore im-
Cible to prore a bastard a slave by descent,
espect to the plea of adventif, there isaome
little confusion in the explanation, our year-
books pre us, of the persons to whom the de*
scrintion of adventif is applicable ; but the form
•f toe plea will best shew the precise meaning
of it. It alledged (cQ, that, either the person
himself who was claimed as a villein regardant
to a manor, or one of his ancestors, was born in
a county different from that in which the
manor was, and so was free, which was held
to be a necessary conclusion to the plea. This
in general was the form of the plea, hut some-
times it was more particular, as in the follow-
ing case (e). In trespass, the defendant pleads
that the plaintiff is his villein regardant to his
manor of Dale ; the plaintiff replies, that his
great-grandfather was bom in C, in the county
of N, and from thence went into the county of
8, and took lands held in bondage within the
manor to which the plaintiff is supposed to be
a villein regardant, and mo after time of me-
mory his great-grandfather was adventif. It is
plain from this case, that the plea of adventif
was calculated to destroy the claim to villenage
regardant, by shewing that the connection of
the supposed villein and his ancestors with the
manor to which they were supposed to be re-
gardant, had begun within time of memory ;
and as holding lands by villein-services was
anciently deemed a mark (y), though not a
certain one, of personal bondage, I conjecture
that this special matter was never pleaded, ex-
cept to distinguish the mere tenant by villein
services from the villein in blood as well as
tenure. But whatever might be the cases
pro|ier for the plea of adventif, it is one other
incontrovertible proof, in addition to the proofs
alrcaily mentioned, that no slavery having
had commencement within time of memory
was lawful in England ; and that if one an-
cestor could be found whose blood was nn-
tarnirhed with the stain of slavery, the title
of villenage was no longer capable of being
sustained.
. (e) Co. Lilt. 123, a.
(d) 13 E. 1. It. North. Fitz. Abr. Ville-
oage 36. 19 E. 2. Fitz. Abr. Villenaire 32. 33
E. 3. Fiiz. Abr. Visne 2.— 39 £. 3, 36. —
41 E. 3. Fitz. Abr. Villenage 7.-43 K. 3, 31.
—50 E. 3. Fitz. Abr. Villenage, 24.— 19 H. 6,
11.— 19 H 6, 17.
(e) 31 E. 3. Fiiz. Abr. Visne 1.
(f) Fiizlierbert says, " if^ a man dwells on
lands which have been held in villenage time
out of niiud, he shall be a villein, and it is a
good pre«cripiif»n ; and against this prescription
tt is a good plea to aay that hia father or grand-
fiuher WM mimttiffi • Ibs. Fill. ifcr. Till*.
MgVfli.
The Negro Case.
[48
Such were the striking peculia- hqv it ii uut
rities in the manner of making title |^ ntn or
to a Tillein, and . of contesting the tS^hSSe
question of liberty ; and it is scarce Suot!*"^
possible to attend to the enumera-
tion of them, without anticipating me in the
inferences 1 have to make. — ^The law of Eng-
land onl^ knows slavery by birth ; it requires
prescription in making title to a slave ; It re-
ceives on the lord's part do testimony except
such as proves the slavery to have been always
in the blood and family, on the villetn'a part
every testimony which proves the slavery to
have been once out of his blood and family ;
it allows nothing to sustain the slavery except
what shewa its commencement beyond the time
of memory, every thing to defeat thealaverj
which evinces its commencement within the
time of memory. But in our American colo-
nies and other countries slavery may be by
captivity or contract as well as by birth ; no
prescription is requisite; nor is it necessary
that slavery should be in the blood and family,
and immemorial. Therefore the law of Eng-
land is not applicable to the slavery of our
American colonies, or of other countries. — If
the law of England would permit the intro-
duction of a slavery commencing out of Eng-
land, the rules it prescribes for trying the tiUe
to a slave would be applicable to such a slavery ;
but they are not so ; and from thence it is evi-
dent that the introduction of such a slavery h
not permitted by the law of England. — ^The
law of England then excludes every slaTery
not commencmg in England, every slavery
though commencing there not being antient
and immemorial, l^llenage is the only slavery
which can possibly answer to such a de-
scription, and that has long expired by the
deaths and emancipathns of all those who
were once the objects of it. Consequently
there is now no slavery which can be lawful in
England, until the legislature shall interpose
its authority to make it so.
This is plain, unadorned, and direct reason-
ing ; it wants no aid from the colours of art, or
the embellishments of language; it is com-
posed of necessary inferences from facts and
rules of law, which do not admit of contradic-
tion ; and I think, that it must be vain to at-
tempt shaking a superstructure raised on sucb
solid foundations.
As to I he other arguments I have to adduce
against the revival uf domestic slavery, I do con-
fess that they are less powerful, being merely
presumptive. But then I must add, that they
are strong and violent presumptions ; such at
furnish morecertiTin grounds of judicialdecisioop
than are to be had io many of the cases which
l>ccome the subjects of legal controversy. For
2dly. 1 infer that the law of ad. Ariumcrt
England will not permit a new JSlSJnlfroS*
slavery, from the fact of I here iiiri«itor
never yet having been anv slavery h'!^f"bS
but viAenage, and from the actual ?"?*>';^nr
eztinetion of that antient slavery. •■4 fvom im
IfaaewsUrcry coaM have law- tSu'SSHt!^
49]
The Negro Case.
A. D. 1771.
[50
fnllj eomineiiced here, or lawfully hare been
intndaced from a foreign country, is there the
mH remote prohabilily, that in the course of
ao Btay centuries a new slavery should oe?er
har< arisen ? If a new race of slaves could
kie been iotroduced under the denomination
•f riHeiosi, if a new slavery could have been
hm time to time engrafted on the antient
Mck, would the latvs of villenage have once
kcame obsolete for want of ohjcctii, or would
Mt i successive supply of slaves .have conti-
■aed their operation to the present times ? But
Mtvithstanding the vast extent of our com-
■ercial connections, the fact is confessedly
•iberwise. The autient slavery has once ex-
pired ; neither natives nor foreif^ners have yet
Mceeeded in the introduction of a new slavery ;
nd from thence the strongest presumption
arifts, that the law of England doth not permit
nch an introduction.
u Arriami Sdly. 1 losist, that the unlaw-
tmai 'fran fulncss of introduciii^' a new sla-
ifernin uT very into Eugknd, from our Ame-
Uffn^T rican colonies or any other coun-
eaiirjrt. i^y^ jg de<lucil)le-froiii the rules of
the Eo$;1ish law concerning contracts of ser-
vice. Tlie law of England will not permit any
Ban to enslave himsetf by contract. The ut-*
■mst, which our law allows, is a contract to
Krve for life ; and some perhajis may eyen
doubt the ralidity of such a contract, there
keiit^ nu iletermined cases directly atfirming its
hwfuliKss. I n the rei(;n of Henry the 4th (^),
there is a case of debt, brou;^ht by a servant
S'^aiokt the master*:; executors, on a retainer to
Krve for term of life in peace and war for 100
^AiTf a- year ; but it was held, that Uebt did
noiUdr want of a speciulity ; wliicli, as was
a«i^'J, woulil not have been necessary in the
cut ut' a common labourer's salary, because,
»» tiie case in explained by Brooke in abridging
ii. (he Utter is bound to serve by statute (A).
Tii;4 case is the only one f can find, in ivhich
a contract to ferve for life is mentioned ; and
ev«n in this case, there is no judicial decision
M the force of it. Nor did the nature of the
civk require any opinion upon such a contract ;
tbc action not being to establissli the contract
a^in»t the servant, but to enforce payment
i^Tsinst the master's executors for arrears of
salary in respect of service actually per-
fcnned ; and therefore this case will scarce
War any inference iu favour of a contract to
Mrve for life. Certain also it is, that a service
for life in Ent;land is not usual, except in the
€a»fnf a militar}' person ; whose service, though
ia effect for life, is rather so by the o|)cration
«Cibe yearly acts for regulating the army, and
ef tb4* pf-rpetaal act for governing the navy,
tiiin iu cnn<iequenceof any express agreement.
Hiiwrver, 1 do not mean absolutely to ileny
Ike lawfulness of agreeing to servo for life;
■•r Will the inferences 1 shall draw from the
nicsof law concerning servitude by contract,
be in the least affected by admitting such
(i) « H. 4. 14.
(h) Bro. Abr. Dett. 63.
agreements to be lawful. The law of England
may perhaps give effect to a contract of ser-
vice for life; but that is the ne plus ultra of
servitude by contract in England. It will not
allow the servant to invest the master with an
arbitrary power of correcting, imprisoning, (i)
or alienating him; it will not permit him to
renounce the capacity of acquiring and enjoy-
ing property, or to transmit a contract of ser«
vice to his issue {k). Iu other word*'', it will not
permit the servant to incorporate into his con-
tract the ingredients of slavery. ; Aud why ia
it that the law of England rejects a contract of
slavery? The only reason to be assigned is,
that the law of England, acknowledging only
the autient slavery which is now expired, will
not allow the introduction of a new species,
even though founded on consent of the party.
The same reason operates with double force
against a new slavery founded on captivity in
war, and introduced from another country.
Will the law of England condemn a new sla-
very commencing by consent of the party, and at
the same time approve of one founded on force,
and most probably on oppression also? Will the
law of England invalidate a new slavery com-
mencing in this country, when the title to the
slavery may be fairly examined ; and at the
same time give efiect to a new slavery intro-
duced from another country, when disproof of
the slavery must generally be impossible?
This would be rejecting and receiving a nevf
slavery at the same moment ; rejecting slavery
the least odious, receiving slavery the most
odious : and by such an inconsistency, the
wisdom and justice vT the English law would
be completely dir'ionoured. Nor will this rea-
soning be w^ukened by observing that our law
permittc::! vilienage, which was a slavery con-
fessed to originate from force ^nd capttuty in
war; because that was a slavery coeval with
the first formation of the English constitution^
and conspqunnlly had a commencement here
prior to the establishment of those rules which
the common law furnishes against slavery by
contract.
Having thus explained the three ExaminaCom
great arguments which I oppose to J[, [{|* "J^J^^
the introduction of domestic sla- oi-uwj
very from our American colonies, bciotc tin.-
(i) Lord Ilobart says, ** the body of a free-
man cannot he made subject to distress or im-
prisonment by contract, but only by judg-
ment." Hob. 61. I shall have occaMon to
make use of this authority agaiu in a subse-
quent part uf this argument.
(k) Mr. IVIolloy thinks, that servants may
contract to serve for life ; but then he adds,
" but at this day there is no contract of the
ancestor can oblige his posterity to an here-
ditary service ; nor can such as accept those
servants exercise the ancient right or dominion
over them, no not so much as to use an extra-
ordinary rigour, without subjecting themselves
to tbc law." Moll, de Jur. Marit. l^t ed. b. 3»
c. 1, s. 7, p. U98.
E
51] 12 GEORGE IIL
StilSJjr •' er any foreign country, it is now
proper to enquire, how far the sub-
ject \s affected by the casei and judicial deei-
■ioni since or just before the extinction of ?il-
lenaf^e.
The first case on the subject is one mentioned
in Mr. Rush worth's Historical Collections (/);
and it is ihere said. That in the 11th of Eliza-
beth, one Cartwrifjrht brought a slave from
Bussia, and would scour^^e him ; for which he
fras questioned ; and it was resolved, that En(f-
land was too pure an air for a slave to breathe
in. Ill order to judge what degree of credit is
due to the representation of this case, it will be
proper to state from whom Mr. Rusbworth re-
ports it. In 1637, there was a proceeding by
information in the Star-Chamber against the
famous John Lilbume, for printing and pub-
lishing a libel ; and for bis contempt in refusing
to answer interrogatories, he was by order of
the Court imprisoned till he should answer, and
also whipped, pilloried, and fined. Uis iropri-
aonment continued till 1640, when the Lioog
Parliament befiran. He was then relessed, and
the House of Commons impeached the judges
of the Star -Chamber for their proceedings
•gainst Lilburne. In speaking to this impeach-
ment, the managers of^the Commons cited the
case of the Russian slave. Therefore the truth
of the case doth not depend upon John Lil-
burne's assertion, as the learned observer on the
antient statutes (m) seems to apprehend ; but
reals upon the credit due to the managers of
the Commons. When this is considerni, and
that the vear of theL>reign in which the case
happened is mentioned, with the name of the
person who brought the slave into England ;
that not above 73 or 73 years had intervened
between the fact and the relation of it ; and also
that the case could not be supposed to have
any influence on the fate of the impeachment
•gainst the judges ; 1 see no great objection to
a belief of the case. If the account of it is
true, the plain inference from it is, that the
•lave was become free by bis arrival in Eng-
land. An^ other construction renders the case
unintelligible, because scourging, or even cor-
rection of a severer kind, was allowed by the
law of England to the lord in the punishment
of his villem ; and conseouentiv, if our law had
recognized the Russisn slave, bis master would
Jiave been justified in scourging him.
The first case in our printed Reports is that
of Butts against Penny (n), which is said to
have been adjudged by the Court of King's-
bench in Trinity term, S9th of Chsries the 3d.
It was an action of trover for ten (o) negroes ;
•nd there was a special verdict, finding, that
(I) Rushw. ▼. 3, p. 468.
(m) Barr. Observ. on Ant, Stat. Sd edit,
p. 241.
Ca; 2 Lev. 301, and 3 Keb. 785. See Hill,
f 9 Char. 2, B. U. Rot. 1116.
(o) According to Levins^ the action was for
too negroes ; but it it • oifttke, the record
msatioDiiig 10.
The Negro Case.
[M
the negroes were infidels, subjects to an infidel
prince, and usually bought and sold in India
as merchandize by the custom amongst mer«
chants, and that the plaintiff had bought them,
and waa in possession of them ; and that the
defendant took tliem out of his possession. The ^
Court held, that negroes being usually bought
and sold amongst merchants in India, and be*
ing infidels Qi), there might lie a properly ia
them sufficient to aiaintain the action ; and it
is said that judgment Nisi was given for the
plaintiff, but that on the prayer of the counsel
for the defendant to be further heiird in the
case, time was given till the next term. lu
this way our reporters state the case ; and if
nothing further appeared, it might be cited ai
an authority, though a very feeble one,, to sheir
that the master's propert^r in his negro slaves
eoDtinues after their arrival in England, an4
conseonentljir that the negroes are not emanci-
pated by being brought here. But having •
suspicion of some defect in the state of the
case, 1 deaired an examination of the Roll (9) ;
and according to the account of it given to me,
though the declaration ia for negroes generally
in I^ndon, without any mention of foreign
parts, yet from the special verdict it appears,
tliat the action was really brought to recover
the value of negroes, 6f which the plaintiff had
been possessed, not in England, but in India*
Tiierefore this case would prove nothing in fa-
vour of slavery in England, even if it bad re-
ceived the Court's ju^ment, which however
it never did receive, there being only an * olte-
* rius consilium' on the Roll.
The next case of trover was between Oell
and Cleve in the Common-Pleas, and was
7.
(p) According to this reasoning, it is lawful
to have an infidel alave, but not a Christian
one. This distinction, between persons of op-
posite persuaaions in religion, is very ancieut.
Amongst the Jews, the condition of toe Hebrew
slave had many advantages over that of • slave
of foreign extraction. [See sect. 37, of the Dis-
sertation on Slavery prefixed to Potgiesser. Jua
Germ, de Stat. Serv. J Formerly too the Ma-
homedans pretended, that their religion did not
allow them to enslave such as should embrace
it ; but, as Bodin says, the opinion was little at-
tended to in practice. (See Bodin, de Republica,
lib. 1, cap. 5, de imperio servili.) A like distinc-
tion was made in very early times amongst
Christisns ; and the author of the Mirroir in one
Klace expresses himself, as if the distinction
ad been adopted by the law of England. (See
the Mirr. c. 3, s. 38.) But our other ancient
writers do not take the least notice of such •
distinction, nor do I find it once mentioneil in
the year-books ; which are therefore strong pre-
aumptive evidence against the reception of it
in our courts of justice as law, however the
opinion may have prevailed amongst divines
and others m speculation. See Barr. Obaerv.
Ant. Stat 3 edit. p. 239.
(q) The Bell wm eyamiori for me bj •
friend.
Tfie Negro Case.
. ._ _ _. m SlhorWilliam SDtl
la lb« report or Ibiicue(r), tlieCdun
sbhI l« bave held, that Iroter will lie far a
■*tnWy, brcause n^i^ro^i are liealhens ; Bud
tfwrfuc m man may hare proi^erl^ In them,
Mddw Court without avermvot will lake no-
«BFlh*l Ihev are b^lhens. On eiaminalion of
Ac IMI (•).*! llDil tlial the action was brought
trrariona article* of merchaiidize aa welt at
AewfTo; anil I iiupeci, tliat ia lliis cB«e, as
•cll a* the Tonner one of Dutu aui] I'puny, the
actim wa« fur ■ neTro in America ; but ibe de-
cbntton belna: laij ^nerally , and there btiiig
•■■prciftl verdict, it n now loo late to nacertaia
tW fiteL I will therefore luppose tbe action
bfaB*e been for a negro in biiglaiid, and ad-
ait that it tends la shew the lawlulnen of har-
»f negn alave* io England. But then if the
MM ia la be anderslood in Ibii <eiiEe, I eay
ttat it appears to have been ailjiulgeJ without
Mlnnn «r|^n>enl ; that there I9 no rrewniag
fadMKport of tbJKcaselo impeach tbe )>Hn-
■flaaaftaiT, on which I have urgued a^Hiast
tM r«*i*al of lUiery in Encjland ; ibil unless
tbiac principlea cm be cniilroverled with suc-
•n. It will tw impossible Io sunain the auiho-
ntjafaurb a case; and further, tbatilalandi
- ■■ -d by a subsequent case; in which
•a al'slufery came direcily before the
Tbe anty other reported case of trover ia
tM aT Kmtlh agaiiiit fiuulil, which was ad-
>d|nl, UkIi. 4 Ann, in ibe KingVbench. Io
barer (() for screral things, anil among tbe
mt far a oegro, not guilty waspleaded, and
4(ra waa a verdict tor the plainlilf with several
^■Hia, 30/. being gi*en for Ibe negro ; and
•huiflianient on a molian in arrest of juilg-
■-la, lb« Courl held, that trover did not
I* Ir a oegrn. If in Ibis case the action
■M br a negro in Erijflanil, tbe judgment
B It ii > direct contradiction to the caee
•TGdly and Cleve. But 1 atn inclined to
Ihak, that In 'this, as well as in the former
tma vf trover, the negroea for which the
uaoM wvrc brought, were not in England ;
ia< tbat IB ail of Ibeiii the question was
at aa itie lawfulness of having negro slaves
i« Ensland, bol merely whether troier wag
0* pniptr kind of artion fur recovering the
falucal a oi-gn) unlawfully detained from the
•raw ia America and Inilia. The things, for
■hiA intvrr to griifral lies, are those in which
e property, without
> tb* u
f llien
I tht
■sauv'a power over Itie stave dulh nut extend
tahaa TiTr, and couteijuently the master's pro-
ffflT in iltaalateia in Mime degree qualified
u'liiBiled. Buppoaing tberefore the cases uf
Mirr ID bare b«wa delermiaed on ttiis dis-
■nioo, I will not insisl upon any present
- -^t frum ibem in argument ; ih'iiigh
Imi iif llirni, if it will benr any tnateriul
1>1 I L. Baym. 1*7.
fij (life TriiL A W.A:M. C. O. IL.I1. NMOT
(ij 3Wk. 0M.— Sotldao, 1 L. Rayin. UT.
[54
the King's bench in Hilary Sth si
lisni the 3d, Trespass vi ti artnis whs bn)ii|<bt
by Chamberlain (u) against Harvey, fur lakiii(f
a negro vf the value uf 100/. and by tlie special
verdict it appears, that tbe negro, for Hhich
the pluinlilT sued, bad been brouglit from Bar-
badoes into Eneland, and was here bsjilized
without the plaintiff's consent, and at ibe tima
when the treiipass was alleged, was in the de-
fendant's service, and had 67. a-year lor wages.
In the argUDieniof tliis case, three qiiesiions
were made. One was, wliether tbe fads in
the verdict snlEcienily shewed that the plaintiff
had ever had a vested property in tlie n^ro (m) t
anoltier was, whether that prO|ierty was not
devested by bringing Ibe negro into England :
and the third wss, whether trespass lor laking
a man of the value of iOOl, was the proper ac-
tion. After several argumenls, Ibe Court gava
Judgment against (be plaintiff. Bull do cuo-
tess, tbat in the reports we have of Ihe case, no
opinion on the great question of slavery is
mentioned ; it Incoming unnecesssry to de-
clare one, as llie Court held, thai Ibe ac-
tion should have been an action to recoret
damages for the loss of Ibe service, and not to
recover the value of the slave. Of this case,
therefore, 1 shall not attempt to avail my»elf.
But the next case, wbicli was an action of
Indebitatus Assumpsit in the King's-bench by
Smith against Browne nod Cowper (f), la
more to the purpose. The plaintiff declared
for SO/, for a negro aold by him to tbe deten-
danis io London ; and on motion in arrest of
judgment, tbe Court held, that ihe plaintiff
should have averred in Ibe declaration, tbat the
negro at ibe lime of tlie sate was in Virginia,
and tbat negroes by tbe laws and slalutes of
Virginia are saleahli' Q/]. In Ibe^e words ibere
is a direct opinion aguinst the slavery of ne<
groes in England: fur if it was laHful, the
negro would hare been saleable and transfer*
able here, a« well as in Virginia j and staling,
that tbe negro at the time of Ibe sale wa> ia
Virginia, could not have been ejiseiiiisl lu Itta
(u) 1 L. Raym. 146. Carlli, 396, and 5
Moil. mi).
(ai) The fuels which occasioned this ques-
tion, 1 have umiiteit in the stale of (be case ;
because ihev are nut material to tlie questiou of
slavery in Entilnnd.
(i) a iiiulk. C66. Tbe case is not reported .
iu any other bunk ; and in Salkehl the lime
when (he c*<ie was delermuieil is iiinitled. But
it appears to have been iu the Klng'shench,
by Ibe inentiun of lord chief juiiice Holt and
Mr. J. I
(y) Tbe reporter adds, that Ibe C'Hirt di-
rected, thai the plaintiff should amend his ile-
clamlion. But after venliui it caooot surely
be tbe practice to permit so essential an amend-
ineiil ; and iherefuir tbe reporter muit bate
mitundcrstovd the Courl'a Jircclion.
fiS]
IS GEORGE III.
The Negro Case.
[56
BuflicieDcy of the declaration. But tke in-
fluence of this case, on the question of slavery,
is not by mere inference frona ibe Court's opi-
nion on the plaintiff's mode of declaring in his
action. The lanij^uage of the judges, in giving
that opinion, is remarkably strong against the |
slavery of negroes, and every other new sla-
very attempted to be introduced into England.
Mr. Justice Powell says, ** In a villein the
owner has a property ; the villein is an inhe-
ritance ; but I be law takes no notice of a ne-
gro." l/ord Chief Justice Holtis'still mnreex-
plicit ; for he says, that " one may be a villein in
England ;" but that ** as soon as a negro comes
into England, he becomes free." The words of
these two great judges contain the whole of the
proposition, fur which I am contending. They
admit property in the villein ; they deny pro-
perty in the nesro. They assent to the old
slavery of the villein: they disallow the new
slavery of the negro.
I beg leave to mention one other case, chiefly
for the sake of introducing a strong expression
of the late lord chancellor Northington. It is
the case of Shanley and Hervey, which was de-
termined in Chancery some time in March
1762. The question was between a negro and
his former master, who claimed the benefit of
a * donatio mortis caus^' made to the negro by
a lady, on whom he had attended as servant for
several years by the permission of his master.'
Lord Northington, as 1 am informed by a
friend who was present at the hearing of the
cause, disallowed the master's claim with great
vrarmth, and gave costs to the negro. He
particularly said, ** As soon as a man puts toot
00 English ground, he is free : a negro may
maintain an action against his master for ill
iisag^e, and may have a Habeas Corpus, if re-
strained of his liberty" (x).
Objection* Havitig obscrvcd upon all the
m:*de lo life csses, 10 wliicli thcrc 18 any thing
"fn"ih?**. *^ ^^ found relative to the present
sentUHrul' ' lawfulness of slavery in England;
"nTnlindr' It is time to consider the force of
c(atcd«iMiui- iiie several objections, which are
(z) In the above enumeration of cases, I
have omitted one, which nus sir Thomas Gran-
tham's case in the Common-Pleas, Hilary (2 &
3 Jam. 12. Being short, I shall give it m the
words of the I{e|K)rt. ** He bought a monster
in the Indies, which was a man of that coun-
try, who had the shape of a child growing out
of his breast as an excrcKcrncy all but his head.
This man he brought hither, and exposed to
the sight of the people for profit. The Indian
turns Christian and was baptized, and was de-
tained from his master, who brought a Horoine
Replegiaiido. The sheriff returned, that he
had replevied the body ; but doth not say the
body in which sir Thomas claimed a property ;
whereupon he was ordered to amend his return,
aitd then the Court of Common-I'leas bailed
him." 3 Mod. 130. It doth not appear, that
the'feturn was ever argued, or that the Court
gave any opinion oo tbiacaae ; and therefora AO-
Uif **' *^ ioff rred from it*
likely to be made, as well to the inferencea I
have drawn from the determined cases, at to
the general doctrine I huvc been urging.
1. It may be asked, why it is that the law
should permit the ancient slavery of the viHein,
and yet disallow a slavery of modern com-
mencement?
To this I answer, that villenaofe sprung up
ainongst our ancestors in the early and barba-
rous state of society ; that afterwards more
humane customs and wiser opinions prevailed,
and by their influence rules were established
for checking the progress of slavery ; and that
it was thought most prudent to eflect this great
object, not instantaneously by declaring every
slavery unlawful, but gradually by excluding
a new race of slaves, and encouraging the vo-
luntary emancipation of the ajcieot race. It
might have seemed an arbitrary exertion of
power, by a retrospective law to have annihi-
lated pro|)erty, which, however inconvenient,
was already vested under the sanction of ex*
istiug laws, by lawful means ; but it was policy
without injustice to restrain future acquisitions.
3. It may be said, that as there is nothing
to binder persons of free condition from be-
coming slaves by acknowledging themselves to
be villeins, theret'ore a new slavery is not con-
trary to law.
1 he force of this objection arises from a sup-
position, that confession or acknowledgment of
villenage is a lefpil mode of creating slavery ;
but on examining the nature of the acknow-
ledgment, it will be evident, that the law doth
not permit villenage to be acknowledged for
any such purpose. The term itself iinporta
something widely different from creation ; the
acknowledgment, or confession of a thing, im-
plying that the thing acknowledged or con-
fessed has a previous existence ; an<l in all
cases, criminal as well as civil, tht law intends,
that no roan will confess an untruth to his own
disadvantage, and therefore never requires
proof of that which is admitted to be true by
the person interested to deny it. Besides, it
is not allowable to institute a proceeding for the
avowed aud direct purpose of ackno\» ledging
villenage ; for the law will not allow the con-
fession of it to be received, except where vil-
lenage is alledged in an adverse way ; that is,
only (a) when villenage was pleade<i by the
lord against one whom he claimed as his vil-
lein ; or by the villein against strangers, in
order to excuse himself from defending actions
to which his lord only was the pro|>er party ;
or when one villein was produced to orove vik
lenage against another of the same blood who
denied the slavery. If the acknowledgmi^nt
had been permitted as a creation of slavery,
would the law have requiretl, that the confes-
sion should be made in a mode so indirect ami
circuitous as a suit professedly commenced for
a different purpose? If confession is a creation
of slavery, it certainly oiust be deemed a
creation by consent ; but if confession had been
adopted as a voluntary creation of slavery,
(a) Co. litt. ISli b.
57}
The Negro Cote.
A. D. 1771.
[68
woold the law have restrained the courts of
jostice from receiving confession, except iu an
adverse way ? If confession had been allowed
as a mode of creating slavery, would the law
have received the confession of one person as
|Md evidence of slavery in another of the
«ae bkM>d, merely because they were descend-
§i from tlie saiue common ancestor ? This last
orcamalance is of itself decisive ; because it
iMcssarily implied, that a slavery confessed
vas a a&avery oy descent.
On a ironsideration of these circumstances
sttendin^ the acknowletlgment of villenage^ I
ihaak it impossible to doubt its being merely a
csBfemioD of that antiquity in the slavery,
which was otherwise necessary to be proved.
Bat if a doubt can be entertained, the opinions
sf the gjreateat lawyers may be produced to
refliove it, and to shew, that, in consideration
sf Uw, the person confessing was a villein by
dcseeot and m blood. In the year-book of 43
£. 3, (6), it is laid down as a general rule,
** that when one claims any mau as his villein,
it riiall be intended always thai he is his vil-
ku by reason of stock.*' Lord chief justice
Hobart considers villenage by confession in
this way, and says (c), ** the confession iu the
court of record is not so much a creation, as.it
if in supposal of law a declaration of rightful
liUenage before, as a 'confession in other
ictiuos." Mr. Serjeant Rolle too, in his
skitigmeot, when he is writing on villenage
bj acknowledgment, uses very stron*; words to
the same effect. He says in one idace (d)^ ** it
lemH int«!nded that title is made that he should
be a villeio by descent," and in another place
(c), ** it seems intended that title is made hy
inscription, wherefore the issue shoultl also
bii'iiifiiis." The only instance I can find, of
a .N<iivo Habenilo founded on a previous ac-
Jcsb'siedgmeot of viilenaffe, is a stronj|r atitho-
\ii\ tfi the same purpose. In the 19lh of Ed ward
2, \J') the dean and chapter of London brought
iwrit ofNetfty to recover a viilein, and con-
d«ied their declaration with mentioning his
aekaowledgment of the villenage on a former
Qccasioo, instead of producing their suit, or
anaesses, as was necessary when the villenage
bad not been confessed : but notwithstanding
ibe acknowledgment, the plaintiffs ailedgeda
seizin of the villein with eaplees, or receipt of
profits from him, in the usual manner. This
case is another proof, that a sei/in previous to
tiie acknowledgment was the real foundation
At ibe lurd*s claim, and that the acknowledge
neat was merely used to estop the villein from
CAQtesting a fact which had been before so-
kmoly confessed. However, 1 do admit, that
sader the form of acknowledgment there was
a possibility of coUusively creating slavery.
but tliis was not practicable without the con-
csrrence of the person himself who was to be
(t) 43 E. 3. 4-
(c) Hob. 99.
Ro. Abr. 73S. pi. 6.
(€j lb. pi. 8.
; Fits. Abr. Villeiiage, 34.
9
the sufferer by the fraud ; and it was not pro-
bable, that many persons should be found so
base in mind, so false to themselves, as to sell
themselves and their p(niterily, and to renounca
the common protection and benefit of the law
for a bare maintenance, which, by .the wise
provision of the law in this country, may al-
ways be had hy the most needy and ilis»tressed»
on terms infinitely less ign(d)le and s«*Yere. It
should also be remembered, that such a collu-
sion could scarcely be wholly prevented, so
long as any of the real and unmanumilied de-
scendants from the antient villeins remained ;
because there would have been the same possi-
bility of defrauding the law on the actual trial
of villenage, as by a previous acknonledgmeot.
Besides, if collustons of this sort had ever be*
come frequent, the lej^ialature mi^ht have pre-
vented their effect hy an extraordinary reme-
dy. It seems, that antiently such frauds were
sometimes practised ; and that free persons, in
order to evade the trial of actions brought
against them, alleilged that they were villeins
to a stranger to the suit, which, on ac<'ount of
the great improbability that a confesvion so dis-
advantageous should be void of tiuth, was a
plea the common law did not suffer the plain-
tiff to deny. BOt a remedy was soon applied,
and the statute of (g) 37 E. 3, was made, gi% ing
to the plaintiff a liberty of contesting such ao
allegation of villenage. if in these times it
should be eiideavoure<l to revive domeslio
slavery in Eugland, by a like fraudulent con-
fession of «il!enat;e, surely so unworthy an at-
tempt, so (rross an evnl^ion of the law, \tould
excite in this court the sti<ii!gest diNapptobutioa
and resentment, and fiom parliament would re-
ceive an immediate and t- ffectual reutedy ; I
mean, a law declaring that villenage, as is
most notoriously the fact, has been long expired
for want of real ohjects, and therefore making
void all precedent confessions of it, and prohi-
biting the courts of justice from recording a
confeK^ion of villenao^e in future.
3. It may be objected, that though it is not
usual in the wars between Christian powers to
enslave prisoners, yet that souie nations, parti-
cularly the several stales on the coast of Bar-
bary, still adhere to that inhuman practice ;
and that in case of our ^eing at war with
them, the law of nations would juMtify our
king in retaliating; and consequently, that
the law of England has not excluded the possi-
bility of iittroUucini^ a new slavery, as the ar-
guments against it sup|»08e.
But this objecti<in may be easily answered ;
for if the arguments auainst a new slavery in
En(>land are well ftumded, (hey reach the
kin^r as well as his subjects. If it has been at
all times the policy of the law of Enj^laod not
to recognize any slavery hut the antir nt one of
the viilein, which is now expired ; we cannot
consistently attribute to the executive power a
prerotrative of rendering that policy ineffec-
tual. It in true, that the law of nations may
ttf
(g) 37 E. 3| C. 1§.
09] 18 GEORGE HL
give a right of retnliating on an eoeroy, who
cnskres his captirea in war; but then the
exercise of this riicrht niay be prereoted or li-
mited by the law of any particniar country. A
writer of eminence (A) on the law of nations,
has a passage very applicable to this subject.
His words are, "If the ciftl law of anv na-
tion does not allow of slavery, prisoners of war
who are taken by that nation cannot be nimde
ffaves." He is justified in his obserration not
only by the reason of the thing, but by the
practice of some nations, where slavery is as
unlawful as it is in England. The Dutch (i)
when at war with the Algerines, Tunisians, or
Tripolitans, make no scruple of retaliating on
their enemies ; but slavery not being lawful in
their European dominions, they have usually
■old their prisoners of war as slaves in Spain,
where slavery is still permitted. To this ex-
ample I have only to add, that I do not know
an instance, in which a prerogative of having
<saptive slaves in England has ever been as-
sumed by the crown; and it being also the
policy of our law not to admit a new slavery,
there appears neither reason nor fact to sup-
pose the existence of a royal prerogative to in-
troduce it.
' 4. Another objection will be, that there ai«
Engli^ acts of parliament, which give a sanc-
tion to the slavery of negroes ; and therefore
that it is now lawful, whatever it might be an*
tece<lently to those statutes.
The statutes in favour of this objection are
the 5 Geo. 9, c. 7, (k) which makes negroes in
America liable to all debts, simple-contract as
well as speciality, and the statutes regelating
the African trade, particularly the SS Geo. 9,
c. 31, which io the preamble recites, that the
trade to Africa is advantageous to Great Bri-
tain, and necessary for supplying its colonies
with negroes. But the utmost which can be
said of these statutes is, that tliey impliedly
authorize the slavery of negroes in America ;
and it would be a strange thing to say, that
permitting slavery there, includes a permission
of slavery here. By an unhappy concurrence
•f circumstances, the slavery of negroes is
thought to have become necessary in America ;
and therefore in America our legislature has
permitted the slavery of negroes. But the
slavery of negroes is unnecessary in England,
(h) Rutherf. Inst. Nat. L. v. 8, p. 576.
(i) * Quia ipsa servitus inter Cbristianos
' fere exolevit, eft quoque non utimur in hostes
' eaptos. Possumus tamen, si ita placeat ; imo
* ntimur quandoque adversus eos, qui in nos
* utuntur. Qnare et Bel(jpae quos Algerienses,
* Tunitanos, Tripolenses, in Oceano aut Mari
* Mediterraneo capiunt, solent in servitutem
< Hispanis vendere, nam ipsi Be\^te servos non
* liabent, nisi in Asi& Africft et Americft. Quin
■ anno 1661, Ordines Generales Admiralio suo
' naodlUvnt, pirates eaptos in servitntem ven-
* dsrat IdmoQue ofaservatom est anno 1664.'
Byaksrsbock QosBst Jnr. PnbL lib. 1| c. 9.
The N^o Case.
[60
and therefore the legislature has not extended
the permission of it to England ; and not hav-
ing done so, how can this court be warranted
to make such an extension f
&. Ihie slavery of negroes being admitted to
be lawful now in America, however questions-*
hie its first introduction there might be, it msy
be urged, that the lex ioci ought to prevail, and
that the master's property in the negro as a
slave, having had a lawful commencement in
America, cannot be justly vsri^ by bringing
him into England.
1 shall answer this objection br explaining
the limitatran, under which the lex loci ought
always to be received. It is a general rule {/),
that the lex loci shall not prevail, if great in-
conveniences will en&ne from giving eflect to
it. Now I apprehend, that no instance can be
mentioned, in which an application of the lex
loci would be mora inconvenient, than in the
case of slavery. It must be W^^d* that
where the lex loci cannot have effect without
introducing the thing prohibited in a degree
either as great, or nearly as great, as if there
was no prohibition, there the greatest inconve-
nience would ensue from regarding the le$r
loci^ and consequently it ought not to prevail.
Indeed, by receiving it under such circum-
stances, the end of a prohibition would be fims-
trated, either entirely or in a very great de-
gree ; and so the prohibition of things tha
most pernicious in their tendency would he-
come vain and fruitless. And what greater in-
conveniences can we imagine, than those,
which would necessarily result from such an
unlimited sacrifice of the municipal law to the
law of a foreign country ? 1 will now apply
thia general doctrine to the particular case of
our own law oonceraing slavery. Our Uw pro-
hibita the commencement of domestic slavery
in England ; because it disapproves of slavery,
and considers its operation as dangerous and
destructive to the whole commnntiy. But
would not this prohibition be whollv ineffec-
tual, if slavery could be introduced from a fo-
reign country ? In the course of time, thoucrh
perhaps in a progress less rapid, would not do-
mestic slavery become as general, and be as
completely revived in England by introduction
from our colonies and from foreign countries,
as if it wss permitted to revive by commence-
ment here ; and would not the same inconve-
niences follow ? To prevent the revival of do-
mestic slavery effectually, iu iatroduction must
be resisted universally, without regard to the
place of its commencement ; and therefore in
the instance of slavery, the lex loci must \ield
to the municipal law. From the fact of there
never yet having been any slavery in this
country except the old and now expired one
of viilenage, it is evident, that hitherto our law
has uniformly control leil the lex loci in this re-
spect ; and so. long as the same policy of ex-
(l) See the chapter * de conflictu legum di-
* versarum in divenis inperiisi* ia Huber. Vn^
lect, p. §38*
The Negro Caie.
e case of
liberty lo
din^ ibe lex loci in ll
■M, iigiiea imtneilialesnd ciilJri
■i, ■iien itiey are tirougbt here
orcuiDtrv. Atoat of (lie iither European
an. io which slarcrj ii discauDleoaiiced,
Maiopwd a lihe policy.
Ii SoMland domMlic ilavery is (m) un-
to^o. eierpl CA far as regards the (n) coal-
k*ni aoi] sall-maken, wbose condUian, il
B* be coorrMed, bears some resemMance lo
*|07 : because atl wliu bave unce acted in
MRof ibifse capaciiies are compellable to
mt, and fixed to ilieir respective places of
mbimcDl durioe lite. Bui wilb this single
onyiiaa, there is not llie least vestige ut
Aktj i aod «o jealous is the Scotch law of
Bin t^ta( li:Dding to slavery, that it bu been
U to disalUnr coulracts of seriice for life, or
*rt ttrj lon^ term ; as, for Bimy years (o).
Boner, nn parlicular case bas yet happened,
■ ■hicb it bfta beeu necessary to decide, wbe-
M a *l(«e of another country acquires free-
aaaabis arriral in Scolland. In 1757 Ibis
fHH« wms depending in tbe Court of SessioD
itciBse of a oei^ro ; but tbe negro happen-
•% la die during ibe pendency of the cause,
*■ fiMiou was not (*) delemiined. But
•M a >■ conaidered, that in the time nf sir
ttaBBiCtaig, who nroleat least ISO years
if^diter* was eten then a thing unheard of
• toMlaBd, and thai there sre no laws (p )t(
^mt ilavery, one can scarce doubt nbai
^an tbe lords uf aession would have prO'
•^■4, if Ibe negro's death bad not pre-
mt a d^ision.
ake Cnited ProviDcesslaTerybaTiag fallen
['■J Sec Crag. Jus Feud. lib. ;
tJL Suit'* Instil, b. 1, I. e, E.
(n) Puib. Insl. jurl 1, b. 2, t. :
haa-ial. I, p. 66,
(t) Uaedooal. Instit. toI. 1,1
■M ita 1 1 1 r . that in tbe case reli
IhBiwial. the lerm of service wa
i eireumstince. Tbe con
, dieges. 1 1 ,
. Mucdoual.
68. But I
by Mr.
11 the
bo* ikc uasters and the crews of some iish
' hani Uie latter biadjag themselves for a
ynriy »Upw*Dce lo serre in their respeclite
MM dariflf! Ibree limes nineteen yean, so Ibal
HIaov af dtem, duriug all that time, could re-
aaae traoi a particular tillage, or ao much aa
ft«« MC boat to arnaber. See Diet. Decii,
tL Pactum illicitum.
CJ Wall. Instil. Law of Scotl. chap, on
WK^r aari aerTant
(f) ikr Tbamaa Craig, toantinning the Eng-
U (rikaafe, aaj s, ■ N'lillua eiil apud uos eju
'tmm,rt inaadiium nomen, nisi quod iionnull
'■bbru HrgiE UajesUlii de nnlitisetad li
'hnuem ^nwlamanlibut prop una iitu r ; qut
'aib A«c'"""" iu'>ribiia«iint recepla, et nun
'w^ M uauin nostrum deducta.' Crag. Ju
r Jl^l
A. D. 1771. [B2
into diiuie (j), all their wrilen agree, that
s from another country become Iree ib»
lent they euler into the Duti;h terriioriea
(r). The same custom prevails in some of Iha
neighbouring countries, particularly Brabant,
Had olher parts of tbe Aualrian Netherlands;
and Gudelinu), an eminent civilian, who was
formerly proreiwor of law at Lourain in Bra-
bant, relatea from tbe annals uf the supreme
council at Mechlin, IhnI, in tbe year 1531, an
applicatiou for apprehending and surrendering
a tngitive slave from Spain was on tbia account
rejected (j).
Jn France tbe law is parlicularly explicit
against regarding ihe Itx foci in tbe case of do-
mestic slavery : and though, in some of tba
provinces, a reronanl of tbe antient slavery U
still to be seen in Ihe persons of the ' serfs' or
' gens de mnio-inorte,' who are attached lo
panicular lanJi ((), as villeins reLfardaut for-
merly were ia England ; yet all the writers on
Ibe law of France agree, that tbe moment a
slave arrives ibere from analber country h«
acquires liberty, not in consequence of any
wrilteo law, tiul merely by long usage having
the ti}rce of law. There are many remarkable
inatances in which Ibis rule against the aitmis-
sion of slaves from foreign couniries has bad
effect in France. Two are mentioned by (n)
Bodin; one being Ibe case of a foreign mer-
chant who had purcliaaed a slave in Spain, and
alierwards carried him into France ; tbe olher
being tbe case of a Spanish ambassador, whose
slave was declared tree, notwitbstanding the
high and independent character of the sTave's
owner. This latter case has been objected lo
by Borne writers (w) on Ibe law of nationg, who
do not disapjirove of the general principle nn
Cf ) ■ BelgiG servos non babeol, nisi in Asit,
' Africft, et AmericL' Byokersh. QokbI. Jur,
Pub, bb. I, c. 3. Another great Dutch lawyer
adds, ■ Nee cuiquam mortalium nunc liceel
■ use venundare, aut ali& ratiune servilDlis jure
■ semel alleri addicere.' Voet Commentar. ad
Pandect, lib. 1, lil. 5, s. 3.
(r) ' Servilua naulatim ab usu recesiil, ejua-
' que Domeo bodie apud nos exolevit; adco
' quidem ut scrvi, qui aliunde hue adducunlur,
' simul ac imperii noslri fines intrftrunt, invilia
' ipsorum dominia ad hberlatcm proclamars
' pussini ; id qnod et aliaruTD ChriEiiBn&ruia
' gentium moribusreceplum esl.' Grieuewcgeu
de Leg. Abrogat. in Hollandili, &c. p, S, John
Voel, in the place cited in ihe preceding note,
expresses himself to the same effect.
(t) Gudelin. de Jur. Noviss. lib. 1, c. 5, et
ViDn.iiilnslit.lib. 1, til. 3, p.39,edit. Heinecc.
(I) See Inst, au droit Franc. parM. Argou,
ed. 1763, liv, l, chap. 1, p. 4.
(u) Bodin. de llepubhc. lib. 1, cap. S, d«
iniperio herili. Se« several other inslancea
(Tienliuned in the Nfgru cause in Ihe 13tb vo-
lume of the Causes Celehres.
(a) K.irchner, de Lt^al. lib, 3, c. 1, nom.
333; and afier him Bynkprshoek Juge Com-
pel, dvs Ambatnd. Cil. ^ut Qatbejt.c. l&,t.V
63J 12 GEORGE IIL
which liberty is giren to stares brought from
foreig^D countries, but only coroplaio of lis ap-
plication to the particular case of an ambassa-
dor. But, 00 the other hand, Wicquefort (x)
blames the states of Holland for not followindf
the example of the French, in a case which
he mentions. AHer the establishment of the
Frenci) colonies in South America, the kinfips
of France thought fit to deviate from the strict^
ness of the antient French law, in respect to
■larery, and in them to permit and regulate the
possessiou of negro slaves. The first edict for
this purpose is said to have been one in April
1615, and another was made in May 1685 (^),
which is not confined to negroes, hut regulates
the general police of the French islands in
America, and is known by the name of the
Code Noir. But notwithstanding these edicts,
if DPgro slaves were carried from the French
American islands into France, they were inti-
tled to the benefit of the ancient French law,
and became free on their arrival in France (x).
To prevent this consequence, a third etiict was
ma(le in October 1716, which permits the
bringing of negro slaves into France from their
Americau islands. The permission is granted
under various restrictions ; all tending to pre-
Tent the long continuance of negroes in France,
to restrain their owners from treatin^^ theni as
property whilst they continue in their mother
country, and to prevent the importation of fu-
gitive negroes ; and with a like view, a royal
declaration was made in December 1738 (a),
containing an exposition of the edict of 1716,
and some additional provisions. But th« an-
tient law of France in favour of slaves from
another country, still has efl'ect, if the terms of
the edict of 1716, and of the declaration of
1738 are not strictly complied with ; or if the
negro is brought from a place, to which they
do not extend. This appears from two cases
adjudged since the edict of 1716. In one (A)
of them, which happened in 1738, a negro had
been brought from the island of St. Dumio^o
without oliserving the terms of the edict of
1716 ; and in the other (r), which was decided
to late as in the year 1758, a slave had been
brought from the Kast Indies, to which the
(x) Wicq. Embassador, Engl. ed. p. 268.
(y) Decisions Nouvelles, par M. Denisart, j
tit. Ne^res. — Denisart mentions, that the edict
of 1685 is registered with the sovereign council
at Domingo, but has never been registered in
any of the French parliaments.
^ O) Nouvelles Decisions par M. Denisart,
tit. Negres, s. yr.
(a) M. Denisart oWrves, that (he edict of
1716, and the declaration of 1738, do uot ap-
pear to hare been ever registered by the parlia-
**'J«nt of Paris, beciiuse they are considered as
^^^^ryto the common law of the kingdom.^
hw Nouvelles Decisions, Ut. Ncgrtss. And
> < ^ ^'•usca Celebres, vol. 13, p. 492.
\^ Nouvellei Decisioot par M. DemMrt,
It. Neffrca^ a, 147.
The Negro Case. ([64
edict doth not extend : and tn both tljeie cases
the slaves were declared to be free.
Such are the examples tlrawii from the laws
and usages of other Eur(»|»ean countries ; and
they fully evince, that wherever it is the policy
to discountenance slavery, a disregard of the
lex loci, in the case of slavery, is as well justi-
fied by general practice, as it is really founded
on necessity. Nor is the justice of such pro-
ceeding less evident ; for how can it be unjust
to devest the master's property in his slave,
when he is carried into a country, in which^
for the wisest and moat humane reasons, such
property is known to be prohibited, and conse-
quently cannot be lawfully introduced P
6. It may be contended, that though the law
of England will not receive the negro as a
slave, yet it may suspend the severe qualities of
the slavery whilst the negro is in £o(^land, and
f»reserve the master's right over him m the re-
ation of a servant, either by presuming a con-
tract for that purpose, or, without the aid of
such a refinement, by compulsion of law
grounded on the condition of slavery in which
the negro was .previous tn his arrival here.
But in8U|)erable difficulties occur against
modifying and qualifying ihc slavery by this
artificial refinement. In titc pr^-sent case, at
all events, such a mo<lific:itiuu cannot be allow-
able ; because, in the return, the master claims
the benefit of the rel.ition between him and the
negro in the full extenf of the original slavery.
But for the sake of shewing the futility of
the argument of modification, and in order
to prevent a future attempt by the masters of
negroes to avail themselves of it, 1 i^ill try its
force.
As to the presuming a contract of service
against the negro, i ask at what time is its
commencement to be supposeil? Jf the time
was before the negro's arrival in Ktij^land, it
was made when he was in a staie of slavery,
and consequently without the po\ier of con-
tracting. If the time presumed was subse-
quent, the presumption must begin tiie moment
of the negro's arrival here, and consHpiently
be founded on the mere fart of that arrival, and
the consequential enfrnnchisement by opera-
tion of law. But is uot a slavery, determined
against the consent of the master, a strange
foundation for presuming a contract l»etween
him and the slave ? For a momeut, however, I
will allow the reasonableness of pref:uming
such a contraH, or I will suppose it to l>e re-
duced into writing ; but then I ask, what are
the terms of this contrartP To answer the
master's pur|iose, it must be a contract to serve
the master here; and when he leaves this
country to return with him into America,
where the slavery will again attach oiion the
negro. In plain terms, it' is a contract to go
into slavery whenever the master's occasions
shall require. Will the law of £n<;land dis-
allow the introduction of slavery, and therefore
emancipate the negro from it ; and yet give
effect to a contract founded solely upon sla-
Tcry , ID slavery endiog ? Is it possible, that the
«J
The Negro Case.
I : h.« aa
» t-r»ir.n
ri'-Jtt 6.?
•Vlatte
hw of BagUiid can be «o iiwulting to the
Mfpro, te iDOOiitisteiit wil h ittel F P •
The ■rgoineot of modification, iodependeot-
Ij vf euotraet, is eqatlly delusive. — Tliere is
Bsbown rale by which the Court can g^uide
' " ID a partial reception of sla?ery. Be*
if the law of Eogfland would receive the
of the negro io any way, there can be
wby it should not be admitted in the
MM degree as the slavery of the villein ; but
fkt aifgiinieiit of modification necessarily stip-
fH« the ooDtrafy ; Iteeause, if the slavery of
ike aegfo was received in the same extent,
Iba it would not be necessary to have recourse
Ha ^oalification. There is also one other ma-
am still more repugnant to the idea of modify-
isf the staverv. If the law of England would
■Miry the slavery, it would certainly take
•way its most exceptionable qualities, and leave
these which are least oppressive. But the mo-
dUkption required will be insufficient for the
'a parpose, unless the law leaves behind
the most exceptionable, odious and
SMffcnive; an arbitrary power of revivinu:
the slaverj in its full extent, by renraval of
*e oegro to a place, in which the slavery
•in again attach upon him with all its original
K*my(iA.
FroiB this examination of the several ob-
JKtisiis in favour of slavery in England, I
lUak myself well warranted to observe, that
iwcad of being weakened, the arguments
apiast slavery in England have derive an ad*
4tMaal force. The result is, not merely that
Mirers become free on being brought into this
caoBtry, Imt that the law of England confprs
^ %A of liberty entire and unincumbered ;
Mttt lame only, but really and substantislly ;
■W cMMqoentfy that Mr. Stenart cannot have
tW Irvi rii^ht over Sommersett the ue<rro,
^fhtf io the open character of a slave, or in
l^dngvised one of an ordinary servant.
(9.) In the outset of the argu
ment I made a second question ']
on Mr. Htetiart's authority to en -
f«iree his right, if he has any, by
transporting the negro out of Eng- j
land. Few words will be necetfsary
on this point, which my duty as
(d) This answer to the argument of modi-
lestioa, inchides an answer to the supposition,
4tf an action of trespass * per quod servitium
* misit,* will lie for loss of a negro's service.
I IB petvonded, that the case, in which that
rtiMdy was loosely suggested, was one in
vbiefa' the question was about a negro being
•ui of Enifland. I mean tlie case of Smith and
Gbald, S Halk. 667. Another writ, hinted at
h ibc tame case, is the writ of trespass, < qiiarc
'apiivum snum cepit;' which is not in the
bsrt applicaHe to the negro, or any other slave.
hiappoaes the plaintiff to have had one of the
kii^'fceneiAies m his custody as a prisoner of
«ir, and to have had a right of detaining him
fl ^yment of a ransom. Sea Reg. Br. 103,
k. sad f Mk 007.
VUU IX. I
A, D. 1771. [B«
counsel for the negro requires me to make, in
order to g^ve him every possible chance of a
discharge from his confinement, and not from
any doubt of success on the question of slavery.
If in England the negro continues a slave to
Mr. Steuart, he must be content to have the
negro subject to those limitations which the
laws of villenage im|Y06ed on the lord in the
enjoyment of his property in the villein ; there
being no other laws to regulate slavery in this
country. But even those laws did not permit
that high act of dominion which Mr. oteuart
has exercised; for they restrained the lord
from forcing the villein out of England. The
law, by which the lord's power over his villein
was thus limited, has reached the present
times. It is a law (e) made in the time of the
first William, and the words of it are, * prohi-
* bemus ut nullus vendat hominem extra pn-
< triam' (/).
If Mr. Stenart had claimed the negro aa n
servant by contract, and in his return to the
Habeas Corpus had stated a written agreement
to leave England as Mr. Steuart should re^-
quire, signed by the negro, and made after hia
arrival in England, when he had a capacity of
contracting, it miglit then have been a ques-
tion, whether such a contract in writing would
have warranted Mr. Steuart in compelling the
performance of it, by forcibly transporting the
negro out of this country P 1 am myself satis*
fied, that no contract, however solemnly enter-
ed into, would have justified such violence.
It is contrary to the genius of the English
law, to allow any enforcement of agreementli
or contracts, by any other compulsion, than
that from our courts of justice. The exercise
of such a power s not lawful in cases of
agreemeirts for property ; much less ought it to
be so for enforcing atj^reements against the
person. Besiiles, is it reasonable to suppose,
that the law of England would permit that
against the servant by contract, which is de*
nied against the slave? Nor are great autho-
rities wanting to acqtiit the law of England of
such an inconsistency, and to shew, that a
contract will not warrant a compulsion by im-
prisonment, and consequently much less by
transporting the party out of this kingdom.
Lord Hobart, whose extraordinary learning,
judgment, and abilities, have always ranked bis
opinion amongst the highest authorities of law,
expressly says (g), that the body of a freeman
cannot he made subject to distress or imprison-
ment by contract, but only by judgment.
There is, however, one rase, in which it is
said that the performance of a service to be
done abroad, may be compelled without the
(e) Wilk. Leg. 8axon. p. «29, etcap. 65,
Leg. Gulielm. 1.
^) This law furnishes one more arg^ument
against slavery imported from a foreign coun-
try. If the law ik England did not disallow
the admission of ftuth a slavery, would it re-
strain the master from taking his slave out of
the kingdom ? (^) Hob. 61.
F
The Ntgro Case.
h MaCliMi in wliicli ncf^roei ha>e Ihe mis-
iMuap la be coaiiiterMl, elfectUHlly prevails
ll«r uDimrtalion in any uoiMiilrnible x\e%ten.
Oi|te wc not, on nur |<arl, tu q;iiaril atiil pre-
MtH*>i librrtv by wliicli w« are ilialingoiNlidl
!» »> Uw earih ! in be jf Biiiu» of n hareVFr
^■vc tijui a IfDilpm-y lu iliiiiuii*h tlic vrn?-
MM doe m ibe first of UoHtdirsf The tinrriil
«mthn, iKwrc^ cmlible in rcciUl, wrpetrated
■ <—ric«, mtglil, liy (Itc alluwonFt' ul'sla>»
WM^ tn, h« iutmliirpil here. Could your
JMMip, coaltt noy lilierii< and infcenunua le<n-
paiOMlun, In ifaefii'ldaborilrringnu Ihia city,
Mms • wrMcli bouDd li)r aonip trivial nSrnce
I* a ucr, lara and a^iiiiixio^ benettli the
HMtfc f thieh objf ctH mi|{bl by time bpcome
twill I r, b««ucDe unhmleil by (bii> nation ;
■MiiNid, ■■ (bey arv nnw, to I'ar different sen-
ton^. tri>y (l«ne ifnlimenla uevcr be eA
liacil ibe l<«4iD){s uf hiimaiiily I the ^eneraua
■Sm of Tree minds! A]ay tuch principle*
ttfttbe CBrTti|ited hy the mixture i)f' slHTiKh
aMonal Not cau I beliere, we shall autfer
H* iadt*til(«»l liiinjf here tn want that lihrrlv,
*Mae eflVcW arc clory and bappiness to the
faKeaml ncry iodiviilual.
Br. Wallace. — Theqiie<tioD hn« been slated,
•Mb«r Ibv n^hl can be auiiporleil bere; or,
iTiloMi, wlte<ber a coui-ae nt' proceeding's at
Uv he not n«ceaaary to give effect lo the ri|;lit7
b la liwail in tlim i|uarlera of the globe, and
B ftn af ib« f'nurlh. In Asia the wbnie |iea-
)1(; ia Afnea and America far (be i^eater
pull <■> Kiiropv great numliert or the Itiia-
'n and puUndeni. Aa tn captivity in war,
■■ CkruOian prince* liave bteu nvA to i^ive
!■ IB ibe priauaera ; and it look rise probably
iiMCetiaailra, when they gnte llirn) hie. Bad
<^i«aM r-ufraiicbjtied ibem, tu inlisl under
MMMki Th« ri|{hl of a conijueror wui abso-
kw« Eiiivpe, and i* in Africa. I'be natirea
M bnoybl from Africa tntlie West ludiei;
MNlai* ia tnaile ibere, aal became nf poaiti*e
wm, l« tWt* bein|{ im law auaintt ii. Il can*
■■ ba ia MMnlemlinu by ibis or any olber
■M, laaae, wliptbcr ihe West India r«Ku1a-
fe^an lIlebM) poaiible; iuch ■■ tbey are,
•Ua tmf cMtlifiur in liirce aa lawa, tbey muat
liirikHailla. Aa to Eni^land nnl prrmiliin);
i^twy, llan« U no law a^inil it; nor ilo 1
Uaay anainpt liaa been made tu pnire the
aaUM* afaae. Villeoaga itself has all but
htaaa*. Ttiaagb Ibe ilia<ohiliiiii ufm'inas-
Ma, aaBBHC** ulber material allerations, did
aMaaad lb* decay of that tenure, aUves could
halba n EnirlaDii : for villeins were m Ihi*
ttmttj, aarf trere mere alavea, in Elizabeth.
[Urd M
'■ 1 aaai aa aaaeriiua. bill duea not recollect ibe
L Mr, tfaal Ivo »uly were in England in the
-••f ClHrlealh«3•l,altbetimeoftheahnli-
T: 4 iBsna.J In (be caiiet oilMl, the two
-HfiiaeUy alfcnn an aCii"!) of ir.ner, ao action
'•^^ftmfUdto merB Gomiiian chadeN. Lord
■-" — 1 a meia dMlum, a deci&ioo
A.D. 1771. [70
unsupporled by preceilenl. And if it be nh-
{ecteil, that a pmper action rflubl not ha
ironelii. il is a known and allowed priictire in
mercantile IrnnsaciinnK. ii' the cnuie ariiei
■liroad. In lay il wilhin Ibe liinijdom : therefore
the rnnirai't in Viricini* inight lie laid to be in
London, and wunlil not be irareriiable. With
re peel to llie wher c«s<^, ihe pariicidar mode
of action was ainne nbjrcieil in ; had ii been an
Aclinii ' per qniMl servitimii amiail,' for Iob-i of
seiiice, ihp Court wiiuld have allowed it. The
Cuiii'l called ibe pemon. for the recovery of
uhoiii It wag broiiitbi, a slavish servant, in
I Cbaiiiberlayne's cnse. Lord llanlwicke. and
ilii' atterwanit lord chief juaiice I'albol, then
alinrney and aolicitor-genenl. prnn'iuiMed a
aiave not free by coinine into England, It is
neccaidry the iiiaHlers shonld briny them over;
for lliey cannnl trutt the h bites, either wilh
I the atorea or the navigatini; the vessel Tliere-
fore. the Iwnefit taken on the Habeaa Curpui
AciooKiit tube allowed.
I LorrI Manijield obaervea, Tbe ease alluded
lo was u Jinn a 'petition in Lioroln's Inn Hall,
after dinner ; probably, thtreliire, mi);bl not,
OS he believes ibe contrary is nnl unnaaal al that
hour, be taken with much accuracy. Tbe
principal maiter was ihen, on the earnest toli-
dtalion of many mercbanls, lo know, whether
a slave was freed by being made a Christian?
And il was resolved, not. It Is remarkable,
though tile Engl ixb look infinite pains beliire
to |irevenl ibeir slaves being made Christiana,
that ihey might not be freed, the French sug^
gested ihey mutt bring Iheir'a into France,
(wlieD the edict of 1706 was |ietilioned for.J lo
make them Christinns. He aaid, the disliuc-
tion was difficult as loslavrry, which could not
be resumed after emanuipaliDn, and yet ihecon-
ditirmoftlaiery.in ilsfuli eStent,cauldnolhetD-
leraiedhere. lUucbcunsiderationwai necessary,
lo define bow far (lie point should be cstried.
The Conrt must uunnder Ibe great de-
triment lo proprietor*, there being so great
a number in tbe ports of ibis kingdom, that
many thousands of pounda would be lost to (be
uwncri. by seKing Ibem free. (A gentlemaa
observed, no greai dauger; for in a whole
Heel, tianally, there would not be aix alates.)
A* to Prunce, ibe case stated decides no
farther than that kingdom; aud (bere freedo(n
»as cUiinrd, because the slave had not been
registered in ibe port where be eiiiered, con-
I'ormably to the edict of 170<i. Mighi noi a
«lave na well be freed by going oui "f Virginia
lo Ibe adJBient couolrv, where Ibere are no
alavea, if change lo a place of contrary custom
was sufficient ? A statute by the legislaliire, to
auhjei-l ihe Weal ladia properly to payment of
debu, I bD|ie, will be thought some proof; an>
other act devests tbe Africaa company of their
•laves, and vests them io the West India Coiii'
Kany : I say, I hope tliese are proofa Ihe law
■■ interfered for the inainlenance of tbe trade
in klaven, and Ibe iraimferriiig of slavery, Aa
for want of apphcutiiin properly to a court at'
juatice i B common nervani may be coirtciaA
71] 12 GEORGE III.
here by his maAter's prif ate aiitbority. Habeas
Corpus acknuuieU^es a ri<jht to seize pt:rsoiiB
by i'urve employed to ai*rve abroad. A riiebt ol'
coiiipiilsiun (here must be, or ilie master trill
be uutterthe ridicuU»us iiei'esbtty of'nCirlectUiip
bis proper buaiuesSf by stayin<^ here to have
their service, or must he <|uiie deprived of those
slaves lie has beeu obliunl to briog over. The
case, as to service tor life, was uot allowed,
merely tor waut of a deed to pasd it.
The Court approve^l Mr. Alley ne's opinion of
the distinction, how tar niuuicipal laws were to
be refj^rded : instaitced the right of marriag^e ;
which, properly stdeamiased, ivaa in all piacess
the same, but the resfulatiojis of power over
childreu from it, and other circumstances, very
various; and advised, if the merchants thought
it so uecessary, to apply to parliament, who
could make laws.
Adjourned till tliat day se'nnight.
Mr. Dunning. — It is incumbent on me tojas^
4ify captain Roowles's detainer of the nei;ro ;
this will be efiecteil, by proving a right in Mr.
Steuart; even a supposed one: for till that
matter was deteruiiued, it were somewhat un-
accountable tliat a negro should depart his
service, and pat the raeanv om of his power of
triyog that tight to cfleci, by a 6ight out of the
Icingdom. i will ('xplaio what appears to me
the tbundaiion of Mr. Steuart's claim. Before
the writ of Habt-as Corpus issued in the present
case, there was, and tlif re still is, a great num-
ber of slaves in Africa, (from whence the Ame-
rican plantations are supplied) who are saleable,
and in IJMrt sold. L-uder all these descriptions
is James 8ommersett. Mr. Steuart brought him
over to England ; purp;)s:ng to return to Ja-
maica, the negro chose to depart the service,
and was stopt and detained by ciptain Knowles,
until bis master should set sail and take htm
away to be sold in Jamaica The gen;leoien
on the other side, to whom 1 impute no blair.e,
but on the other hand mucb ctniuit-ndation,
baTe advanced osany iiii^euious propositions ;
•part of which are undeuiaWly true, and part (as
w usual io compositions of int^enuity) very dis-
putable. It is my mi>f triune to addr^ an
audience, the grt^ier part of which, I fear,
are prejudiced the other way. But wishes. I
am well convinced, mill ne«er enter into \our
lordships* minds, to influence the determination
4lf the poiut: this cause must be what in fact
•ml law it is ; its late, I trust, therefore, de-
aaa4s on fi\t invariable rules, resulting by law
iom the nature of the case. For myselt'. 1
aaanld not be understood to intimate a wish in
Afuur of aUvery, by any means; nor on the
Alher side to be supposed' the mamuiner of an
apiaioD contrary to my own judgment. I am
Mwnd by duty to oiaintaiu those argot nenis
•yj"^."g must nactfiil to captain Knowles, as
nras is eoBsittmt with truth ; ami if hi« coo-
a^ ????**" ■fRcable lothelaws throughout,
'UK aMcr a laitbcr indtspeasable duty to tup-
^ mk mm albcr aiisatiaa tbaa may
aftbc
The Negro Case.
[78
4|uesiioo : less than this I have do reason lo
ex|iect ; more, I neiiher demand n«»r wish to
havealloweil. Many alarming apiirrheusions
have l»ecn eniertaineil of tiie consequence of* the
dtH^ision, eiiher way. About 14,<»00 slaves,
from the most exact intelligence I am able to
procure, are at present here ; atod some little
lime past, 166,914 in Jamaica ; there are,
hesitles, a number of wild negroes in the woods.
Tike computed value of a negro in those parts
SO/, a head. In the other islands I cauDOt
state with Uie same accuracy, but on the whole
they are about as many. The meaos of coa«
veyance, I am lold, are maniiold , every familv
almost brings over a great number; and will,
be the decision on which side it may. Moal
negroes who have money (and tliat descriptioa
1 Iwlicve uill include nearly all) make ioteresk
with the com moo sailors to be carried hither.
There are nei^roes not falling under the proper
denominatitin of any yet niensioned, descen-
dants of the original slaves, ihe aborigines, if i
may call them so ; these luve gradually ac-
quired a natural attachment to their country
and situation; in all insurrections they side
with their masters: otiierwise the vasi dispco-
portion of the negroes to the whites, (not less
probably than that of 100 to one) wuiild have
been fatal in its consequences. There are rery
strong and particular grounds of apprefaeo-
sion, if the relation in which they stand to
their masters is utterly to be dissolved on the
instant of their doming' into England. Slavery,
say the gentlemen, is an odious thing ; the
name is : and the reality ; if it were as one has
defined, and the rest supposed ii. If it were
accessary to the idea and the ezislence of
James 8ommerwtt, that his master, even here,
mi<;btkill, nay, might e.ii him, might sell living
or dead, might make him and his descendants
pro)>erty alienable, and thus trananaissible to
posterity ; this, how high soever my ideas may
be of the duty of my profession, is what i
should decline pretty' much to defend or aa-
sert, fer any pnr|i08e, seriously ; I should only
speak of it to testify my contempt and ab-
hnirence. But thift'i< w'bat at present I ass
not nt all concerned in ; unless captain Knowles,
or Mr. Steuart, have killed or eat bins.
Freedom has been asserted as a natural right,
and therefore unaUenable and unresirainithle ;
there is (lerhaps do branch of this right, but in
some at all times, and in all places at diffn^ent
times, has lieen restrained : nor couM society
otherwise be conceived to exist. For the KTcal
benefit of the public and individuals, natuial
Hheriy.wliieli cnnsisU in doing what one hkes,
is altered to the doing what one ought. Tba
centlemen who have spoke with so iiinch seal,
have supposed different ways by which slavery
commences; but ha«e omiiicd one, ami rightly {
lor it would have given a ai* ire favourable idea
of the nature of that power agaiost which ibay
combat. We are apt .and great authoritiaa
support this wsy of S|ieaking) to call tbose na*
Hobs nniTcrsaUy, whose laMsl police wa wa
•TybaibariaH; (tbut tbe Gmba, pw.
<, Mhose cuilomi,
r JuitiAuble
^.. ,. L-Rllin^ ilifMi tMiliariikni, wp lire
ttfiMAuiL Ijtnii so, ami draw cunclutinns ac-
w^ty- TImm* are alavcs in Al'fica by cap-
iMf n wkr, but ilii- iiU[iibfr lir tnim ^tesl ;
AcoMMtry u dinidetl iuln tnauy iinall, some
^M loTUutm, u till ila, ill tii^ir wan wilb ciiie
aMbrr, umc lliiii mttuui. There are ol' Ibt^c
^flc, mm tthu Iwvu a ifiiM- uf the H(r|>l and
uAv «f inrduiii ; bul wliu iinneiae llial oC-
l^mat{aiiM ludaly are piiiiiBliable junily by
kt**(«<>bwul'*ertiliMl«, I'DrarimeB against
pofcny, « MHuulcraUK ailiiiliun ia made lo tbe
OMhtr at' Uatcn. Tlify bare ■ process by
■tut ibe qmniily ol tliv di-bt in auMrlained ;
adK'aUtlMfirup'rly i>l' Ibe drbliir in KUoda
daapMnI ail be bas bcMilM, i» deemed pro-
pnr boMFll'; llie proiwt otlJoer (ilieriH' we
■•T call bin) •film ilie iii>>ultMir, and dia-
pan ol' bioi ta ■ nlavr. We don'i cnutcad
M4tr itliicfa uf thHc tlii^ unf'ortunale man in
^■uliaii la ; bul liiv cunditiun was ibat of cer'
Made in Ab«-'i ibe law nC the land o( (bat
walijf di^imsed of him b< pra|i«riy, niili all
Iw I Ibe taaluleti uf Ihe Biilish legislature
^^rm ihn cmidiliiiii ; and iliua lie nas a slave
lalb HI 1«» and fact. I do nol aim al proting
knB fMHMi; out (lecauM ibey want evidrnce,
b* bteaww Ihr} baie nol Wen ronlrorerlcd, lo
■J nntlkirtian, and arc, 1 Ihinh, inCHjialile of
t»al. Hr.Struart, nilh 4tiis right, crotwdihe
luaale, and was not tn Itave lb« Mtiatuctinn of
te«nHBi{, till after Itl* an-rtal in tliia country,
tM all ratalioa belweeo liim ami ibe nejfro, aa
^■■■aiul aervaut, was to be inoittr of con-
Nikij, mad ofiong legal disquiBtlinn. A lew
••lb RMv l>* )impei, cooeeriiine the Russian
! {irar«e>linga nf the Huute of
(bat rate. It is not abaiird in
iM aitsa, ■• ^oiii«d, nor iinjiiubable asinaiter
<*ha; iti« eiprnMion haa a kind of abautdiiy.
I iksb, wiibout any prrjiulive lo Mr. KteuaM,
« Hw men^B uf lh>s cauar, I may adoiil th#
NaMt fuaaiM* lu lie deaired, an fur as Ihe
Baa af Mat *U** goea. The maMfr and slave
■na boili. (uraliuuld bate been at leaii) on
Ibqr «MiBnN{ li^e, new creatures. Kutisian ala-
Mr^. aodrtKithi.' (iilronlioaiiun aniaui{st ihem-
■rim. lo llie iIe^i' t- ibcy use il, ii ant here ta
^llryne jually olHiernis, the
>nH 111' one imuoiry are nol
bill docR I lie rtlalnui cnae
LTculiuK It, Ibe dejcrcf^ in
ry y I bate nut ht«r<l, nor.
my inicniiun in affirm, Ihe
• of trntnt and afr* aoi cea»ea here f I
a municipal relaliuni diH'er iii dil
lanaa e>4inwa, acvoriliui; i
■iiiiy, and
■•■a. A diatiovlion was eudravoured lo
■bail inrtwee.i naliiral and rauDJoipal
bat the iiHiiiral relatiuns are nol
vbicb ailcnd lUaperaoonf Ibe man,
M ura i w>lb wbidi the munioipal
A. D. I77I. [74
re moat closely connecleil i municipal lawa,
rictly, are liiuse cnnAncd to a parti cularfilace;
'""""' - - -' — - wbicb lltt muniei|>al lawa
Tbei
tinD nf hoaliBiid and nile, 1 think niyaelf war-
ranleil in (^umlonitig, as a natural relation ;
does il Kub!.isi tor lif« ; or lo answer the nalui-al
purposfB wblcb way reasonably lie eiipi>used
etieu lo lermiiuite sooner t Yet this ia iiiie of
those rtlaiions nbich follow a man atery
where. Ifonly nahiral relalioos had tbal pro-
ptrt) , the elTeet vtoubl Ue very Kmlled indeed.
In fact, Ibe municipal laws are princ>|inlly eoi-
ployeil in delenniiHng the maniirr by wliicb
relaiinnHareoreated; and which mannrr variet
in Tarious countries, and in Ibe same cnuatnr
at different periods t tbe polillcat relation itsefr
eonlinuing usually unchanged by the cbanM
of plare. Tliere is but one Ibriii al present
with ua, by which the TElaiion of busband and
H ife cnn be constiiiilrd ; Uiere was a time when
olherwise: 1 need ixd say other nalions bare
ilirir own modes, fur ibat ami oiber ends of
socjely. Contract is not llw only means, on
(be oilier haiiil, of producing Ihe relation of
mattrr and serranl ; Ihe magiEiralea are em-
powered lo uLlitje peraoos under certain cir-
cuuialnnces lo serve. Let me take notice, nei-
Ibei' ibe nir of Entjland is too pure lor a glare
to brealbe in, nor have ihe tawa of England
rejected sertilude. Villenage in this country
is said tu be worn oui ; (be proptieiy of the
ejipresaion strikn me a little. Are the lawa
not ex.stinijT by which it was created F A mai-
ler of more curiosity than use, i( is, to enquire
H ben tbal set of people ceased. The slatuie of
tenures ilid not however aboliab villeuage in
gross; it left persoDs of that condition in Ihe
sanie state as hetbre ; if their desceniloDts are
■II deiid, llie gentlemen are rigbl lo say the
subject of ibose law s is gone, bul not tbe law ;
if the sulijeol revivea, the law will lead the
subjecl. If tbe blaliite of Charles Ihe 9d, ever
be rejiealed, tbe law uf villenaee revivea in it*
full force. If my Irarned broilier tbe Serjeant,
or ihe other gentlemen who argued on Ibe
suppuaed subject uf freedom, wilf go through
an 'operatiuD my reading assures me wdl be
sufficient fur thai purpose, 1 shall claim them
as properly. I won't, 1 assure ibem, make a
rigorous use of my |iower ; I will neither seH
them, eat them, nor part wiib ibem. Il wou1(l
be a great surprize, and some inconvenience,
if a lureinnur bringing over a servant, as soon
as he got hither, must take care of bis carriage,
his hurse, and bimsell in whatever meibudlie
might have tbe luck (o iuveol. He muat
lind his way lo l^ndoo do foot. Re tells bia
servant. Do ibia ; the servant replirs, Before I
d« it, I ibiuk lit Id inform you, Bir, the Drat
Btep on this happy laod sets all men on a |>er>
feci level ; ynu are just aa much obliged lo
obey my mmmands. Thus, neither superior,
or infenur, both go without their dinner. We
should tind singular comfort, on entering tbe
liiiiils of a foreign country, tu be thus pt once
daresUil of ail altendance asd all accominodi-
75]
12 GEORGE III.
The Negro Case.
[76
tioo. The ffentleroen hafe oolleded more
reading Iban I ba?e leisure to collect, or in-
dustry (I must own) if I had leisure : very
laudable pains have beeu taken, and rery inge-
nious, in collecting the sentiments of other
countries, which 1 shall not much regard, as
aflectiog the point or jurisdiction of this court.
In Holland, so far from perfect freedom, (1
speak from knowledge) there are, who without
being conscious of contract, hare for offences
perjMtual labour imposed, and death the con-
dition annexed to non- performance. Either
all the different ranks must be allowed natural,
which is not readily conceived, or there are
political ones, which cease not on change of
soil. But in what manner is the negro to
be treated ? How far lawful to detain him F
My footman, according to my agreement, is
obliged to attend me from this city, or he is not ;
if no condition, that be shall not be obliged,
from hence be is obliged, and no injury done.
A servant of a sheriff, by the command of
his master, laid hand gently on another ser-
vant of bin master, and brouebt him before his
toaster, who himself compelled the servant to
hit duty; an action of assault and battery,
and false imprisonment, was brought ; and the
principal quesiinn was, on demurrer, whether
the master could command the servant, though
he might have justified his taking of the ser-
¥ant by his own hands ? The convenience of
the public is far better provided for, by this
private authority of the master, than if the
lawfulness of the command were liable to be
litigated every time a servant thought fit to be
neffligent or troublesome.
Js there a doubt, but a negro might interpose
jn the defence of a master, or a master in de-
fence of a negro ? If to all purposes of ad-
vantage, mutuality requires the rule to extend
to those of disadvantage. It is said, as not
formed by contract, no restraint can be placed
by contract. Whichever way it was formed,
the consequences, good or ill, follow from the
relation, not the manner of producing it. 1
may observe, there is an establishment, by
which magistrates compel idle or dissolute per-
- sons, of various ranks and denominations, to
serve. In the case of apprentices bound out
bv the parish, neither the trade is left to the
choice of those who are to serve, nor the con-
tent of parties necessary ; no contract there-
fore is made in the former instance, none in
the latter ; the dnty remains the same. The
case of contract for life quoted from tbe year-
books, was recognized as valid ; the solemnity
only of an iostrument judged requisite. Your
lordships, (this variety of service, with divers
other sorts, exibtinj^ by law here,) have tbe
option of classing him amongst those servants
which be most resembles in condition : there-
lora, (it seenu to me) are by law authorised to
Mlbroe a servioe for life in the slave, that be-
ftLi ^*^L-^C *•■• •i^o^^ion before his coming
ltttt«r; wbiehy as Qot incompatible, but agree-
SHj •^^WtjinayjiitUytiibBisthefB: I
m/mh A nvhl. my, moat Deootarily iubnit;
as a consequence of a previoDS right in Mr,
Stausrt, which our institutions, not dissolving,
confirm. I don't insist on all the consequences
of villenage; enough is established for our
cause, by supporting the continuance of the
service. Much has been endeavoured, to
raise a distinction, as to the lawfulness of the
negroes commencing slave, from the difficulty
or impossibility of discovery by what means,
under what authority, he became such. This,
1 apprehend, if a curious search were made,
not utterly inexplicable ; nor the legality of bit
original servitude difficult to be proved. But
to what end ? Our legislature, where it finds
a relation existing, supports it in all suita-
ble consequences, without using to enquire
how it commenced. A man enlists for no spo-
cified time; t|ie contract in construction of
law, b for a year : the legialature, when onoe
the man is enlisted, interposes annually to
continue him in the service, as long as the
public has need of him. In times of public
danger he is forced into tbe service; the lawa
from thence forward find him a soldier, mako
him liable to all the bdrden, confer all the
rights (if any rights there are of that state)
and enforce all p«ialties olf neglect of any duty
in that profession, as much and as absolutely,
as if by contract he had so disposed of him-
self. If the Court see a necessity of entering
into the large field of argument, as to right w
the unfortunate roan, and service appears to
them deducible from a discussion of that na-
ture to him, I neither doubt they will, nor wish
they should not. As to the purpose of Mr* ,
Steuart and captain Knowles, my argument
does not require trover should lie, as tor re-
covering of property, nor trespass : a form of
action there is, the writ Per Quod Servitium
Amisit, for loss of service, which the Court
would have recognized ; if they allowed the
means of suing a right, they allowed the right.
The opinion cited, to prove the negroes free on
coming hither, only declares them not sale-
able ; does not take away their service. 1 would
say, before I conclude, not for the sake of the
court, of the audience ; the matter now ia
question, interests the zeal for freedom of no
person, if truly considered ; it being only,
whether I must apply to a court of justice, no
a case, where if the servant was an Englisli-
man I might ose my private auUiority to en-
force the performauce of the aervice, accdrd-
ing to its nature,) or may, without force or out-
rage, take mv servant myself, or by another.
1 hope, therefore, I shall not suffer in the opi-
nion of those whose honest passions are fired
at the name of alavery. 1 hope I have not
transgressed my duty to humanity ; nor doubt
I your lordship's discharge of yours to justice.
Davy, Serj. — My learned friend has thought
proper to consider the question in the begin*
aing of his speech, as of great importance :
it is indeed so ; hot not for uose reasons prin-
cipally assigned by him. 1 apprehend, my
lonl, the honour of Sqglaiid, toe honoor of
The Stgro Cote.
4t li»» w90rmw<f Envlithniin, here or nbroail,
itwn voBCVfnctl. He olwerreH. the nuuilier
k 14,<W0 ur 15.0001 if sn, bi|;li lime lu |iut
Msilta lite pftciice; m(irecii|>eci>Uj,iiiicc
Ibn nnst be seal back »» slltrs, ihou^li ver-
•■iiherF. Tbe ini-reusv ol' iucli inliabilanls,
ml launvivii in llie prmpvriijr ol' ■ euuolry,
Untj iiMnicious ; in au ibliui), nhkh cud, hi
■A. uAt exlcnil its limib^ nor conse[|ueiilly
■■•tuii uMve tbaa a ctrtHiD number ol' inbu'
lAMi, ilaafterndB in excess. Moue^ from tii-
n^ nde (or any ntlier nieaiit) is ont Ibe
•allh af • Daliun ; nnt coailiices any thing to
mfmm tt, >*y farther ihsu the )iruduc^ol the
■nk will MHWCf the ilemanil of DcceEMrins.
la that owe :nnney enriches the iuhabilanli,
m kriag Uic coiuroon represenlalive of lliose
^BipMry and mrUsB, If the encrease of ^a-
)lt esc>«(blfae aunual alock of |>ruiiEitons rc'
fibiw lor tikeif aubfelHlence. Tbus, foreig-n
MtaiiMBiu inbabitanli aitfjmpntinit perpelii-
mj, are ill lo be allowed ; a nation of enemies
■ Um iMrt «r a slale. Mill uoree. Mr. Don-
aN| Blailcil ItimMlf of a Hruug inlerpretalion
rf ika «onl ■ Datural :' it n'M na uacil in the
•«w IB «rki^ be tboutrht (it to understand
bat cjipnrvatOD i it was useil oh moral, which
*■ hm can supersede. All coniracis, I do
mt nature la auen, are of a moral nature ;
lu I know ool any law lo confirni an iminnrsi
cattnei, and execute it. The conlracl of
mntift l» a taaral contract, nlnliliahed lor
cnnl poTpotea, eoforoint; moral uhligaliong ;
■-■ ngh* nl lakin); property hj descent, the
j'^ncy af children; (who in France are
- -ima Ir^llimnle, though horn belbre the
-•-ra^ in EDglanJ doI] : these, anil many
iikw nose^uencM, How I'roni the fnirrlage
"TiAfj •Awiiinixi'd ; are cnveroed by the >nu-
- ol law* of thai partjcniiir sttle, under
-•4a iaalilalioni tbe contra cling and ditposiQ){
^i^i^lcta aa aubjecla ; anil by whose csLa-
tiiakad fama they Hibmil tbe relation In be re-
fidMii, w Gu ai ilB couariiuenceE, not von-
^ttmf the noml <ibli|>atioii, are iolereiled.
li iL* cue of Thorn mid Wbikin*-, in wbleb
I ;ii|> waa counsel, dctermlneil before
■. „k.^A mm died in England,
. iiiScMlanJ; ha*in|r a brother of
i\i ■ filter of the half blood ; the
" laws of Scntlanil, coutd not take.
: .i|r)diea tor BdcniniBtralion to take
. mie, real and peraonal, inlo hit
, 1-r bii own me; the aiiter tiles a
>, i-,.,t.«-ty. The tben'Mr. Attoniey-Ge-
il ^u in auncr for the defendant ; and af-
' -a, ibe ertair, as beina in tkutland, and de-
> diMT fnati a liicolcniiian, ahoutd be go-
■aad \j that law. Lord Hardwicke over-
•J tha wljeetiun a;r*<nil tlie siiler'a taking;
' Ivari llarre was uu pretence for it ; and
' ir t» iIms elfrct, land neatly in tbe fol-
- at worrit—" Supptne ■ foreiffner has ef-
■r atacki, auil diet abroad ; tbry mint
Bled acxiordiriK lo the laws, not of
lyltacwlwrabts affri:ti were, but ef that to
A.D. 1771.
which u a lubjeci he belongeil at Ihe lima
of bia death." All relalionaKorrrned by mu-
nicipal laws, must be so Uu dependant nil
ihera, ilial if the parlies change iheir country
Ihe municipal laws give way, if contradiclury
lo the poiiilcal regulalionauf thai oiher country,
rSeellie cases died in Fabrigaxn. Moslyn.io/]
In the case of master and slare, beinif no
moral obligation, but founded on principles,
and aupporled by practice, ullerly l'oreii(n la
the laws and ciislomii nf this country, the law
cannot recog-nixe such relation. The urgii-
menia founded on municipal regulations, con-
sidered in their proper nature, haTebeen treated
an fully, so learnedly, nod ably, as scarce lo
leare any room for observalioun on that suh-
jed: any thing I could offer to enforce, wotilj
rather appear to weaken ibe Droposiiiup, com-
pared wiib ihe strength and propriety with
which that subject tias already beeu explained
and urged. I am not concerned to dispute,
Ihe negro may contract lo serve ; nor deny
llie relation between ihem, while he continoea
under bia original proprlelor's roof and pro.
tectlon. It is remarkable, in all Dyer, (lur I
have caused a search lu be made as far as ihe
4lh of Henry the 8th,) there is not one instance
uf a man's being held a villein who denied
himaelf to be one ; nor can l]lind a cnnfesiion of
rlllenage In those times. ^Lord Manifield ; —
The last confession of rilleuage extant, is in the
Idth of Henry ibe Gtb.] Iflbe Court would
acknowledge the relalion nf master and aer-
Tsnt, it ceriainly would not allow the most ex-
ceplionable jiart of slavery ; that of being
obliged lo remove, at ihe will of the master,
from tbe protection of tliis land of llberly, lo a
country where ihere are no laws; or hard laws
lo insult bitD. It will not permit slavery sus-
pended for a while, suspended during ihe p]ea<
sure of ihe master. The instance of mnslei-
andservanl commencing without contract ; and
that of apprentices against the will of ibe par-
ties, (ihe latter fouud In lis cnnaequvnces ex-
ceedingly pernicious;) both these are prortded
by special slaiulea of our own municipal law.
If made in France, or any where but here,
they would not have been binding here. To
punish not even a criminal for offences aninat
ibe lawa of another counlry ; lo set tree' a
galley-slave, who is a slave by his crime; and
make a slave of a n^ro, who is one, by hi*
complexion ; is a cruelly and absurdlly thai I
trust will never lake place here : sucn aa, if
promulgrd, would make England a disgrace lo
all the nations under heaven : for Ihe reducing
most abject slate. M r. Dunning lias mentioned,
what he is pleased to term philosophical and
moral grounils, I think, or. something to that
effect, nf slavery ; and would not by any ineana
have ua ihiok irisrespeclfully of those nalions,
whom we miatakrnly call oarbaiiins, merely
Ibi' carrying on tlmi trade ; fur iny part, we
may be warranied, 1 heheve, in affirming the
iBoralily or propriety of the pracliee duel nvt
79]
IQ iSEOROE III.
The Negro Case*
[80
enter their head*; they make slaTes of whom
they think (It. For the air of Englaud ; I
think, however, it has beeo gradually purifyinflf
crer since the reif^n of Elisabeth. Mr. Dun-
ninif seems to hate discovered so roach, as he
finds it chancres a slave into a serrant ; though
unhappily be does not think it of efficacy
eiHiugh to prerent that pestilent disease re-
Tivini;, the instant the poor man is obliged to
quit (voluntarily quits, and legally it seems we
ought to say,) this happy country. However,
it has been asserted, and is now repeated by
me, this air is too pure for a slave to breathe in :
I trust, I shall not quit this court without cer-
taiu confiction of the truth of that assertion.
Lord Matufield, — The question is, if the
owner had a right to detain the slave, for the
tending of him over to lie sold in Jamaica.
In fiveo'r six cases of this nature, 1 have known
It to be accommodated by agreement between
the parties : on its first coming before me, I
■trongly recommended it here. But if the parties
will hare it decided, we must give our opinion.
Compassion will not, on the one hand, nor in-
con? enience on the other, be to decide ; hut the
law: in which the difficulty will be.nnncipally
firom the inconvenience on both sides. Con-
tract for sale of a slave is good here ; the sale
is a matter to which the law properly and rea-
dily attaches, and will maintain the price ac-
cording to the agreement. But here the per-
son of the slave himself is immediately the
object of enquiry ; which makes a very ma-
terial difierence. The now question is. Whe-
ther any dominion, authority or coercion can
be exercised in this country, on a slave accord-
hig to the American laws ? The difficulty of
adopting the relation, without adopting it iu
all Its consequences, is indeed extreme; and
yet, many of those consequences are absolutely
contrary to the municipal law of England.
We have no authority to regulate the condi-
tions in which law shall operate. On the
other hand, should we think the coercive power
cannot be exercised : it is now about 50 years
since the opinion given by two of the greatest
men of their own or any times, (since which no
contract has been brousrbt to trial, between the
masters and slaves;) the service performed by
the slaves without wages, b a clear indication
they did not think themselves free by coming
hither. The setting 14,000 or 15,000 men at
once loose by a solemn opinion, is very dis-
agreeable in the effects it threatens. There
is a case in Hobart, (Coventry and Woodfall,)
where a man had contracted to go as a ma-
riner: but the now case will not come within
that d^sion. Mr. Steuart advances no claims
on contHibt ; he rests his whole demand on a
light to the negro as slave, and mentions the
purpose of dotainiire to be the sending of him
over to be sold in Jamaica. If the parties will
have judgment, * fiat justitia, ruatcoelnm ;* let
justice be done whatever be the cooseqiieDce.
SOi. a- bead may not be a hi^ price ; tbeo
A low followi to the propfwUin of above
1
700,000/. sterling. How would the law stand
with respect to their settlement ; their wages ?
How many actions for any blight coercion by
the master P We cannot in any of these points
direct the law; the law must rule us. In
these particulars, it may lie matter of weighty
consideration, what prnvisiouM are made or set
by law. Mr. Steuart may end the questioOp
by discharging or giving freeduni to the negro.
I did think at first to put the matter to a more
solemn way of argument : but if my brothers
agree, there seems no occasion. I do not ima-
gine, after the point has been discusfted on both
sides so extremely well, any new light could be
thrown on the subject. If the parties chuse to
refer it to the Common Pleas, they can give
themselves that satisfaction whenever they
think fit. An application to pnriiament, if the
merchants think the question of great com-
mercial concern, is the best, and perhaps the
only inethofl of settling the point for the future.
The Court is greatly obliged to the gentlemen
of the bar who have spoke on the subject ; and
by whose care and abilities so much has been
effected, that the rule of decision will be re-
duced to a very easy compass. I cannot
omit to express particular happiness in seeing
young men, just called to the bar, have been
able so ninch to profit by their reading. I
think it right the matter should stand over ;
and if we are called on for a decision, proper
notice shall be given.
Trinity Term, June SS, 177S.
Lord Mansfield, — On the part of Sommersett,
the case which we gave notice should be de-
cided this day, the Court now proceeds to give
its opiniou. 1 shall recite the return to the
writ of Habeas Corpus, as the ground of our
determination ; omitting only wonis of form.
The captain of the ship on board of which the
negro was taken, makes his return to the writ
in terms signifying that there have been, and
still are, slaves to a great number in Africa ;
and that the trade in them is authorized by the
laws and opinions of Virginia and Jamaica ;
that they are goods and chattels ; and, as such,
saleable and sold. That James Sommersett is
a negro of Africa, and long before the return of
the king's writ was brought to be sold, and was
sold to Charies Steuart, esq. then in Jamaica,
and has not been manumitted since ; that Mr.
Steuart, having occasion to transact businesty
came over hither, with an intention to return ;
and brought Sommersett to attend and abide with
him, and to carry him hack as soon as the bust*
ness should be transacted. That such inten*
tion has been, and still continues ; and that the
negro did remain till the time of his departure
in the service of his master Mr. Steuart, and
quitted it without his consent ; and thereuiion,
before the return of the king's writ, the said
Charies Steuart did commit the slave on board
the Anne and Mary, to safe custody, to be kept
till he should set sail, and then to be taken
with him to Jamaica, and there solil as m shive.
And this is the caose why be, captain &iw«ic^ ,
'. Mosli/n.
Mtfwatlhra ud nnw is. commuider of llie
rivte inarl, ilien Bod now l^lni; ia the rirer
rfTVanio, rfnl ilietaiil iirgru, cDmmiltcd lo
Ui ohKhI;, dtrlaJD ; »nii on whicb lie now
Hjfcji him tu Ibe orden uf ibe Coaii. We
Rtlldnv atlrnlion lo llienpinion nf lir Philip
to, had lord chsDcellnr Talbot, whereliy
tn piK-liTMllbEiDirWcs lo llH^ Brilisli planlers,
fit «9 tlw legal CDDuqUf nct» of bIdtcs coming
M«Tl« thi« fitiap-lnm or htiag bajilized, reeog-
Mtcdh/ Wd Hardtficke, lining ni cbincellor
w ibc 19(b atOtiohrr. 1749. ibat tMTer would
liti iImI ■ niii'OD liuil |ire*ni1e<l. if ■ negro
^canie a Chnsliin, be wa*
, hul no grnund in law : Ibat he
Ml laril Talbot, wtipn ailoinpy ftii'l snlitllor.
Mnml, wnr nf iipinion, iliii iin such claim for
liwiiwif a^^alid; ihal though the tlitule uf le-
■MwakadabotnlicdfillvintregirddnltiamaDor,
irtfcediJ»niciMiceiTebulthata roan miufhtBlill
Weamea ntttin it) ^rou, by conlvssinv bim»cir
Meh ia opm court. We are so welT agreed,
Mw tm ihiak there If no (>ccn>:ion nf bating it
aipwd (a« I iuliroaied an intention at ftnl,) | discharged.
A. D. 1775.
[82
before all the judge*, as ii umal. for obiioiis
tenaons, on a return lo a Habeas Corpus. Tbn
only question before ua is, whelbei- the cause
on the return h sufficient ? If it ii, the negro
iDUsI be remanded ; if it is not, he must be
ditcliarged. Accordingly, the return atatef,
lliat the slave departed and refused lo serve ;
whereupon he vrai kept, lo be wld abroad. So
high an act of dominion must be recogniied bv
the law of ihe country where it is used. The
power of a master o»er bis slave has been ex-
Iremety different, in differeot countries. The
state of slavery ia of lucb a nature, that it is
iucapable of being introduced on aoy reasons,
moral or political, but only by posilire law, wbick
preserves its force long afkr the reasons, occa-
sion, and time itself from whenceit wascrealed,
ia erased from meranrv. Ills so odious, thai
nutbingcan be suffered lo support rl, hut posi-
li»e law. Whatever inconTeniences, tberelttre,
may follow from tbe decision, I cannot say this
549. Proceedings in an Action by Mr. Anthony Fabbigas, against
Lieutenant-General Mostyn, Governor of Minorca, for False
Imprisonment and Banishment; first in the Common-Pleas,
and afterwards in the King's-Bench ; 14 Georoe III. a. d
1773— 1774.*
tAifallAving Case i* taken from the Trial,
«W was printed from the Notes in sbort-
iMd of Mr. Gumey, soon aner (he hearing.
)'n« lite AddrvM to tbe Bookseller, which
ffBwd«il Ihe Tfial, il is plain, that Mr. Gur-
mj waa employed lo lake notes for Ibe
pbiMilf. ami Ibal the Tiial was published by
IW idaiMir sr bis friends ^t former £^i-
t» the CoDunOD Pleta, Guildhall.
■iRRT Fjibkiuu, gent. Plaintiff.
MosTTN. eeq. I>efendant
- -' 'rr the Defttdaut.—'Hr. Serjeant
•^rjeanl Burland, Mr. Seijewit
KoUer.
Illicksluntf, 939. Cowp. IQI.
1 lie iitle nl'ibe proceedinK* first published,
-« asly llie txial nf the eaunc U Nini I'riRs
-r Mr. JiM. G<iuM, wbo nut for tbe chief
IS «f the Common Pleas, was tbua ex-
Tke ProMadiags at larre, in a Cnuse on
^ttsMi Wougbl bj AntliODj Fabrigii, g<aL
1 fIB Court being sal, tbe jury were called
over, and the following were sworn la try Ihe
issue Joined between tbe parties.
Jury.
Thomas Zachary, esq. Mr. Thomss Bowlly,
Thomas Asbley, esq. Mr, John Newball,
David Pow<l, esq. Mr. John King, >
Waller Enver.esq. Mr. James ISraiLb,
Mr. William Tomkyo, William Burley, esq.
Mr. Glll>erl Howard, Mr. James Selby.
Mr. Pcckham. May it please your lord-
shiji, and you gentlemen of the jury, this ia aa
action for an BBsautt and false iroprisoament,
brought by Anthony Fabrigas against John
Mostyn, esq. The plaintiff states in his ilecla-
ration, that the defenilant, on tlie 1st of Sep-
tembor, 1771, with force and arms, made an
assault upon him at Minorca ami Ibeo and
there imprisoued biro, and caused bim to lia
against lieutenant-general John Moslyn,' go-
vernor (if tbe island of Minorca, colonel of the
first regiment of drtf(oon guards, and one of IbB
gruoniB of his majesty's bed-cbamber; lor
raise Imprisonment and Punishment frmo Mi-
norca to Cacthagena in Sjmin. TrirJ befnra
Mr. Juit. Gould, in the Courl of Common-
Pleu, in Guildball, Loodoa, on the l)lh of
SSj
U G£OEG£ III.
Action for FaUe Imprisonment^^
[8i
carrietl from Minorca to Ctnhtg^na in 8|Mun.
There is a secviid oouat in the declaration, for
an assault and false iinpriitnDiii^nt, in which the
banishment is omilted. These injuries he lays
July, 1773. Coutaininijr the evidence vfrAa/im
a« delirered by the witnesses; with aJI the
speeches and arguments of the counsel and of
the court."
Before the Trial there was the following Ad-
dress toibe Bookseller.
** I am Tery glad to find yon are going to
publish the trial Mtween Fahrigas and Blostyn,
as the kuowleilge of the particulars of this in-
teresting cause must be worthy the attention
of the public.
'^ A« 1 have passed a great part of my life
in Minorca, and have some knowiedge of the
parties, I was induced from cariosity with many
others to attend this trial at Guildhall, uhere I
was greatly surprised to hear the account given
by governor Moshrn's witneKses, Mess. Wright
and Mackellar, of the constitaiioo and furm of
gu vernment of that island.
" 1 did indeed expect that Mr. Fabrigas's
counsel would have called witnesses to coatra-
dict the very extraordinary account 4bose gen-
tlemen bad given, which they might easily
have done by any persf>n who had the least
knowledge - oif thie matter. I su]>pose they
did not, either from thinking the subject im-
material to their case, or iicrliaps to preserve
to Mr. Serj. Glynn the closure of the trial by
that most eloquent and masterly reply with
which it was concluded.
«* Whatever the motives of Mr. Fabrigas*s
counsel might be for leaving this account un-
contradicted, I think it very material that the
world should not now be misled, as tbey would
be, should they read the evidence of these ^ea*
tlemen, and not he informed of their mistakes ;
I call them mistakes, for however extraonlinary
some parts of their depositions nuiy appear to
an obMrvant reader, I am unwilling to charge
them with any other crime than ignorance.
** I am therefore induced to trouble you with
this letter, that ^if not too late) yon may pub-
lish it with the tnal ; my sola object is, that the
public may be apprized of the misinformation
given by these geotlemm. I do not expect
that the bare oontnulkstioD of an anonymous
person shonld o? ensi the declarations upon oath
of two gentlemen s^veo in open court. All I
mean is, to apprise the public of the tnitb, and
to leare them to make such larUier inqniry as
tbey shall think fit. ^ ^
*' The purport of that part of the evidence
given by thosn gentlemen, wbioh I nwan to
dispnte, was, that a part of the island called
the arraval of St. PhiiVs is not under the juris-
didaon of the msgistrates, nor governed by the
nm lavs which prevail in the rest of the
****"» ^ is ooder ibe sole autkority of the
V^^in^^ and has no lav but his will and
pleasore,
M -!liiS^'^ *«■ ^^ ^ ^^ wrtraordiimry
•cPMiiiiilai as nhisiflli iMpouMB fi>r a oon-
to bis damage at 10,000/. To this declaration
the defendant has pleaded. Not Guilty; and
for further plea, has admitted the charges in
the declaration mentioned, but justifies what he
sideraUe number of inhabitants, in a country
governed by law, and which is part of the do-
minions of the crown of Great Britain, shonld
have had some jery urgent and apparent cause
to make necessary that slavery which English-
men abhor, and it it exists, must have been es«
tabUshed by some particular provision. If it
had been said, that in the fort of St. Phillip's,
in time of actual siege, an absolute military go-
vernment mnst prevail, the objects and the rea-
sons could easily be understood. But to say
that in time of profound peace not only the in*
habitanU of fort Sl Phillip's, but all those of
the arraval, which contains a large tlistrict of
country, with many hundred inhabitants, living
out of all reach of the garrison, should be sub-
ject not to military government, for that has its
written laws and forms of trial, but to the ab-
solute will of the governor, without any law or
trial, is in itselfso absurd, and so contradictory
to every idea of reason, justice, and the spint
with which this country governs its foreign do-
minions, that, I trust, my countrymen will not
believe such a monster exists in any part of
this empire, without better proof than the in-
formation of these gentlemen.
** I would not have the reader think that this
strange idea originated in the brain of Mess.
Wright and Mackellar, for I know it is a fa-
vounte point, which the governor of Minorca
has endeavoured to establish ; not so much, I
believe, for the pleasure of exercising absolute
authority, as on account of some good pen|ni-
sites, which he enjoys, and which can be de-
I fended on no other ground.
' «■ To establish this, it has been endeavoured
to alter the ancient dislributioo of tbe districts
or termioos of the island from tbor to five.
** The four terminos Cieutadella, Alayor,
Marcadal, and Mahon, have their separate
magistrates and jurisdictions, and comprehend
{ the whole isUnd. The arraval of St. PhilUp*o
! was always a part of the termino of Mahim ;
! in order therefore to establish the governor's
' claim, it became necessary to set up the arra-
val of St. Phillip's as a separate and distinct-
termino. If this could he done, it ceased to be
within the jurisdiction of the magistrates of the
island, who have power only in (heir fonr ter-
minos, and accordingly Mess. Wright ani
Mackellar advance, that there are five terminos
instead of four ; but those who are acquainted
with the island will know, that this is a modem
inventiott ; that in the records of the country,
there is not the least fouiHlation for such an
idea ; on the contrary, that every proof of the
reverse exists. The inbabitanti of the arraTnl
are sobject to the particular jurats af Mahon,
tliey diffvr in no respect fiiNn the other mhehi-
tanis of that termino, and the judges posseei
and exercise the same jwisdaetion and autho-
rity ift the amral, M Iksj 4P ia the elhsr pacta
t'ahrigat e. Moiign-
Iv ilmw ^J •II'^'OS U'Bl ibe plaintiff endea-
— »■* (■> crcBW k iDuday among the inhabi-
\M ot MiiMrea, whereupoii ilie Uerenilanl, w
r, WM obliged to leizs tbe phiiitifT, In
o^^ Mn til <]nji in prison, and ihen to Im-
MfckiM to C*ntM)[ena, ai it was lawful for
i» IS do. To thii plea iLe plaintiff replies,
■l»ja,UwltlMderenilaD(did asMolt, impri<
■■jHd iMilab him of his own \rnmg, and
•JMBl mn fueli cause as lie has aboTC al-
M|»<. Mi4 tlincapon imiui is Joined. Thi«,
Miaiauu, h the nature of the pleailincrs. Mr.
*JMt Of UD will open to you the hers on
"h"* oar 4«i-larat>iiii ia fonnded, and if we
•opTwt h by evidence, we shall be entitled lo
' t, with aucli ilaiuages sa tbe injurj
■ml HI
MiMyd
i^Dilvnm of the Jury,
bi* eauie fur the nlaintilF. Gentlcoien,
t BCtton thnt Mr. ralirrgas, ■ natice and
»f the iiland of Minorca, has brought
tbe defendant, Mr. MiMtyn, his majesly 'a
~ la Ihal islantl, tor nssauUing, false im-
_, Dad baoishin^ liim to a foreign coiin-
^mininoi of the king of Spain. Mr.
bu, in (he fini place, pl«aife<l that he is
■f the idand. which could not be the cute, if
tte daia Ml up bj' (he goternar really existed.
" Ma nranf wliateTer hM been ui can he
piJuuiidwtthis ctaini has any fnuo'iation;
wmiminHU Hen. Wright auil MackeJIar at-
*Mf( la (rire any hot tlieir ovrn assertions.
7W aal; tltrng thai had the least similitude lo
pw; wma Ibeir uyiog, that in one instance
te dBeer acting as coiouer to examine a
■tfBlhal had met with a riolml death in the
tBuii, aaked the guttrnor'a ItaTe before he
'TbMfBCl I do not pretend to dispute; il
[■af wadiing ; and waseridentlyonly a mark
«f iii|it*l. which It is no wonder n>agisirste«
ii Am Maad pay l« a iforeroor who realty hai
•i«Mh power. Dm to have made lht« amount
•« Mjt (hinf; like proof, it should hare been
*W««, thai tbe like aiiention was not paid to
Ibt fvrtTaor at Hahon, and io other part* of
ik( MbiML Tbe imtb is, that the inhabitants
an •• JepomlaDl an tbe raililar^, that 1 ba*e
Imwm tbe tame civility shewn m another part
«f A« JelenJ t« the oflii-er who happened to
eMMMiard titcre, but certainly without any in-
-^— ''■'-- — ttt him their authority
■«:";
as. Wriglil ami Mackellar also said,
1 tba Mianrqniua claimed lu be ifoterned
K* tfpSMiah laws, as auiicd beat for the mo-
«m ; but ■nunualed that the Spanish laws
frsia4wl, anil that by them the governor had
a 1^1 ky hta aolp auiboriiy to baniih.
" Tb« fact moit undoubtedly is, thai Mi-
•■a, a CDmiurrrd country, preserves its an-
IBBI ftbe ^fpMiiib) laws, mi the cuiiquemr
'•■MMpT* tbrm uttisn; and iherefare as
A. D. 1779. [80
not guilty of those injuries ; in the next, he ha*
offered this justification for himsi-lf*, that tiie
plaintiff, Mr, Fabrigas, was guilty of practices
tending to sedition, anil that Mr. MiKtyn, liir
iich miahehavjonr, by bis sole aulborily i
cIvBiion, complains of as a grievniire. This
Mr. Mostyn takes npon him to insist, in an
Gaijlish court of jusiine, is the Jasllliable ex-
ercise of an authority derived from the crown
of Eaffland. And Ibe facia which he under-
lakes llius 10 Justify, are, in the first place, a
length of severe imprisooroent npon a nativeaf
the island of Minorca, a Euhje[:t of Great Bri-
tain, liiing under the protectinn i>f the BngUsh
id, secondly, by las sole authority,
vriiiioin ine Interteniion of any Judicature, the
■ending him into e>:ile inip the dominions of a
foreigD prince. Gentlemen, some observations
must strike you upon the very slate nf ihis
plea ; they muil alarm yon, and you must be
anxious to kuotv the particulars of'^tliat cise, li>
irhich, in Ihe sense of any man who has re-
ceived faia edncalioti in this cuunlry, or ever
cotiveraed with £uo^lisbmen, il can be applied
BS jiistificaiioQ ; Iiiat t»se, Iherelbre, I will
ahoi'llj state tn yon : — Mr. Pabrigaa is a gen-
tleman of the island of Minorca, of as ^ood a
noDiIiiioD as any inhabitant of Ihal islaan, of as
fair and unblemished a character too as that
island produces. It la however enough, for .
England has not given Ihem others, it ia true
the Spaniub law.t do prevail in Minorca, both in
civil and criminal mailers, among ihemietves :
but it is eqaallr trne thai Ihey have the pro-
tection of llie English laws agaioit ihcir go-
vernor, who cannot be amenable to Iheir local
lawn, and llial however despoiicully a Spanmh
governor may formerly haveacti'd, it can not
be Ihe law of Spain, or of any couiiiry (lietanse
t is contrary to natural juotii-c) thai a inaa
iIkiuIiI he coiiilemneil and punished without
:lther trial or hearing,
■' It would have been easy for governor
Mnstyn, if Mr. Fabrigas bail commitieil »
crime, to have Inltoweolhe mode of proceed-
ing eslabtiahe'l there in criminal cases, which
is for llie advocate fiscal to prosecuie in the
I of royal gnternmenl, where ihe chief
Jurtice criminal ii the judge.
•' If I was nut nfroid of swelling this letter
loo great a length, 1 should make more re-
irksouwhat passed at this triiil, and point
I many more iustances of power niijnaunolily
luineil by Ihe governun. But I iuipe llinl
what appears from this publication wdl be suf-
Acienl to imlucc administratioa lo consider the
sUte itt this i-land, and give the mhtUntauls
wime better security for the stfeljy of their per-
sons, and eiyoymenl of their property j lor.
rxclusiie of Ihe meanness ibere is in ill using
Ihose who cannol t«oiitt. it is umloubiedty Ihe
best piilicy, for Ihe honour aud siiibihly of our
empire, I'u tiinke all it) depeniJeociea bajipt ."
ftrmrr JErfilwn.
87]
U GEORGE III.
Aatumjir Fake Imprisonment--'
[88
this present purpose, to say that Mr. Fabrigas
18 a descendant of the anlient inhabitants of
Minorca : that he li?ed there under the capitu-
lated rights : that, as such, the national faith was
pledged for his enjoyment of those rights that his
ancestors capitulated for; but what is of niore
consideration, being born in Minorca since its
•ttbjection to the crown of England, he was a
free-born subject of Enp^land, and claimed, as
his birth -right, the privileges due to that cha*
racter, and the protection of the English laws.
There was a particular stipulation upon the
surrender of the island, that every occupier or
possessor of land should be intitled, under cer-
tain regulations and restrictions, to the produce
of his lands, and to such profit as by his in-
dustry he could make of them. Upon that
p;round a dispute arose, to which alone can be
imputed the displeasure of Mr. Mostyn to-
wards the plaintiff, and the treatment ne re-
ceived from him, in the progress of it. Mr.
Mostyn, as governor, was appealed to, and bis
good-nature appeared to be so serviceable to
the adversary of Mr. Fabrigas, that early in
the morning Mr. Fabrigas was suddenly taken
from his house by a file of soldiers, and by
them conducted to a dungeon, unaccused, un-
tried, unconvicted. Thus, without any form
of judicial proceedings, this gentleman, who
then lived in esteem in the island, finds him-
self all of a sudden committed to a dungeon, a
dungeon that was made use of only for the
roost dangerous malefactors, and that only
when they were ready to receive the last of
punishments. In this gloomy, damp, dismal,
and horrid dungeon, was this man detained
without anj^ previous accusation, without any
call upon him to make his defence, or being
informed there was any crime or offence that
was alledged against nim, and without any
notice either to him or his family. When he
found himself in prison, there was humanity
enough in the breast of the keeper of that pri-
son to accommodate him with a bed ; but it
seems that accommodation was bv the power
of that island thought too much for him, and
the bed was taken from bim ; a check was
given to the lenity of the keeper. No notice
having been given to his family that they
might visit or administer comfort to him ; he
did, by humble request, desire that his wife
might be permitted to visit bim : that consola-
tion too Has denied him. In this manner was
Mr. Fabrigas deprived of bis liberty for a con-
•iderable time. It is unnecessary for me to
state particularly the precise time that this
imprisonment continued ; that you will hear
from the witnesses. Nor does a case like this
depend upon minutes, hours, or days, but this
is the nature and kind of imprisonment that
Mr. Fabrigas endured : so closely watched
that no man could have access to him, deprived
of the consolation of his family, severed from
all communication with his friends, relations, or
acquaintance, that could administer the least
comfort to him. For several days did this man
Aontinue under thii impiiaoDiiiciity oor did hit
iufierings determine with it ; his removal from
the dungeon was only a substitute of one spe-
cies of cruelty in the place off another : for the
instant he was taken from prison, he was car-
ried by the same arbitrary and despotic power
on board a ship, without any previous notice,
without any time allowed him to prepare for
his departure, without the ordinary visit or
comfort of friends and acquaintance, from
whom he was probabl v to lie se|>arated for ever.
Thus was this man taken from his native coun-
try, and the insupportalde hardships of a dun-
geon were followed by an entire expulsion from
his country, and every thing that was dear to
him : he was sent instantly on board a ship by
force, and carried to Carthagena, a foreign
country, under the dominion of the crown of
Spain. This is the nature of Mr. Fabrigas't
case. Now, gentlemen, for a moment, let me
remind you of the pretence under which this
imprisonment is inflicted. It is said Mr. Fa-
brigas excited sedition, or attempted to excite
sedition ; that he acted or spoke in a turbulenc
and mutinous manner ; and therefore that the
governor, as his plea states he was well autho-
rized to do, committed him to prison, and
banished him out of the island ; or rather com-
mitted him to prison for the purpose of baniah-
ing him out of the island, for I believe that is
the true state of his plea. Gentlemen, you
would justly accuse me of a great and wanton
waste of your time, if I should say a great deal
for the purpose of exculpating Air. Fabrigas
from the charge and imputation that is thrown
upon him in this place, because I am persuaded
that you, an English jury, if you were silting
in judicature upon the case of^ confessedly the
vilest of offenders, you would not suffer the
atrocity of the offence to mitigate that censure
and animadversion which is due to a behaviour
like this of the governor's. In private justice
to the character of Mr. Fabrigas, and not as the
least relating to any question here to be tried,
gentlemen, I will sUte to you upon what
grounds and pretence this mutiny is alleged
against Mr. Fabrigas. Mr. Fabrigas, as I have
told you, claimed, among all the other inhabi-
tants and possessors of lands in the island, a
right of seUiog the produce of his lands, under
certain restrictions. The proiluce of the lands
is chiefly wine : Mr. Fabngas had a consider-
able quantity. His msjesty, by his proclama*
tion, bad given free liberty to the inhabitants
of that part of the island where Mr. Fabrigas
lived, to sell their wines, the price being first
settled by the authority of the governor : — that
price is called the aflloration price. Notwith-
standing bis majesty's proclamation, by an act
and order, not of governor Mostyn, but of hit
lieutenant-governor, there was a pruliibition
that no wine should be sold without the imme-
diate authority of the mustastaph. An appli-
cation therefore, by Mr. Fabrigas, was made
to this officer, either to permit him to sell his
wines under the afforation price, which would
be for the general reUef and benefit of the
islandeny um of the giniaoDy or that he him*
Fabrigoi v. Mosli/n.
)rlt«l a fixed price. Tliit nfficer
■^ly with eiiber: Mr. Fobri^B
o Ihe necessity iil" inak-
k^pplicAliun lo gureroor Slostyn,
u llii* tllernittiTe, either to sell Ills
vjiimitrr ■ oerUio atlurxioD and ngulalfd
pr-, or tiial Ihe KuteiiimeaL Would buy his
■«( of him for llieir use, or the ube of Ihe car-
i.nu Ttiis (>etilion hds thought reasonable al
tit, and had a kind ansttfr; it was received,
aM 4 a|i|ivir* Id hate been takeo JDlo ciinsi-
Antnp, but Duibing- vts doae in canwqiience
•fn. JUr. Fahngas iherefore repeals his a[i-
^icaliua. and he irceivei kdcou rare men t lu
iifvcltbal tlie reason able nesa oi' hia petilion
■voU be taken inlo consideralian, aod ibal he
■kaahl be at hbvrlj to aell Ibe utoduce of his
imA But, iftnliemeo, at last LbU auRner was
Ciien lo tit. Fabrics: ibat il' it ajiiieartil to
k lb* Mine of a ciinsideruble nuDiber of ibe
lababiUnla ikf itie jjlaiid, ibalil was fur ihtHr
kinffti ihal aiich |iei roinkioii should be gitrn,
hn apfilMVUioo iboiild be tumplied wiih. Mr.
i-~iAn|ia< Ibea prepares BOcli a (letilioa; be kfels
il«i;*nl, and he prt«eots il in ^Ternor Moiiyn.
Naw, gaDtlamen, berc it is impassible lo stale
«tal |uaac4 between llie parties. It' it can be
|WHn4Bd Uial tlierewaa any Ibing mutinous,
|«M«eibat petnion will be proiluced to you,
aad il ■ill ajwak Inr ilaell'; but some iadigns-
Ma iraa cniK«i'ed liy soternor Moalyn against
tic idainliir, Mr. rabrii;aa, which protluced
llM abMige, unaccouDtable, unwarrantable,
•■lalamia^ euuduci, which we now, by evi-
Wcr, impuie lo Mr, Hnstyn. For );entle-
■a, iMtaatly npoo ibii, Itlr. Fabriifai is cun-
'■oelia iha oianner Iwlure-meuli'ined lo thai
MWri ta 5*1), till he was hurried ou board «
rtif, svl •>•■ conveyed lo Cartlia^^cnn in ^(jaiu.
Bna^ hr lb« flrn time, he rvcrirea iuielli-
fOM iif what was the proiocaiion that he
pta, wbat waa the ([round ul' auth Ireatmeal
■< hi*a, wbil cliari;* waa imputed in bim, by
■hai aallfotity be was so ilfiaiued and so
Inxtrf: tut here a|i[iean ■ Itlier under the
iaai «r (vtenwt Bloslyn, sviwing Ibis acl,
aa4 Mtiaff bim ihil be tlionttbt ii neces«8rv
ui mif^taA, fur the (lunishmeol of his ut-
' -jrx, b> aend bim into exile, and lo direct bim
1* oua*r_«ed tu Cnrtliatjeaa in Spain, Here
'■jiott find lliegiTeruoraToiriu^; Ihe whole;
. 1 jT be did nni alow ilic H hole, you muld
11 c OB ilouU ander what antburity these tlilnits
-e 4tMi*i liMaiiae you will hear from all,
•I tb«y caiuiot W douc but under thenulho-
I of ifac iforcrnor. Then, (•enilenien, Ihe
V'uMnmox, and ihe aeoding Ibis man inlo
. i^. arc lh« act* ot i;overoiir Hostyn. The
i-DMHiinrwl tinilrr such attanee sg^iravaling
•i-umtUtitvt of hurror aiid ignomiuy, and the
■-•^■■•c b«ia witliuul nnliee, without tliue for
p^nswan, wiihii"! K>*ii>K 1>'»> )be opporlu-
h; af payiof (lie 'eul alleiiiion to the oaii-
' ' ieuiiraiiiily,ioioezile; Ibete,
A. D. 1775.
[00
gentlemeD. we now presume lo treat a« the
aeis uf Koiernnr Hosiyn ; and llie KOTernor
sa^s, he is justified in >u doinjf, as ^nterupT of
Minorca. I should be glad lo know upua »hal
idea of justice llie ^of emur i{rniiti(ls thai pre-
Irnce. 1 conceive, ihsl in this ease, there cao-
uol he the least colour or pretence of aay judi-
cial examinalion, or the least liirm ot judicial
prDceeiling:s. GoTeruor Moslyn, alter liBTinff
iieen guilty of ibis ouirnse ID Ibe plaintiff,
would bare acted luuoh belter, if be had not
added this insult to the laws ot his couoiry, by
asaumiog an autbnrily iuciinipatibli: with the
least possible idea of justice that can bevnler-
tained in tliis or in any couDlry wliauoeter.
Genilemeo, if goveruiir iVloslyii complsini that
Justice is not done lu bis defence by his |4ea.
ibat he is fettered and eniharrosaed by it, and
cnuld now justily his conduct upon belter
grounda, we will freely giie him the oppertu-
iiity of doing it ; he cball rio il m h bat clia-
racler be ihiiiks proper. If he has acted uuder
ibe ci •lour of any judicial proceeilings in civil
Judicslure, Ut those proceediii|fs be pruducrd.
let liim desert and abBDdonlheslisinelulpleailiBl
he has presented ; he has even our tibrrly lo do
it. If the goveruor means lo be ju»tilied in his
inililarv character, I need not itll you. genlle-
iiien, that it is necessary in that cboracler, that
there shonld be judicial proceedings bkewiie
of a military court of justice. I will be bold
to aay, that the idea govenior Moslyn haa
adopted, that the liies, fortunes, and being of
Ibe iuhaliiiants of the island of Minorca are at
Ills mercy, and that by bis sole autliotily be
CDD inflict bonds and imprisonment on any
inhabilRDt nf that island, is the single idea of
governor Moslyn; and I say the Kovernor
dues nut, in this case, latk like a miliinry man,
fur his ideas are as foreign to ihe uotioi>i uf a
snldier, as of a lawyer. Gi'ntlemen. this is
the nature of the case that we shall oiTiv to
ynu, and which we sliall pruiluce in proof lo
you against gucerour Moslyn; an imprison-
ment, if il bad been attended with all Ihe cir-
cumstances of cumlort lliut cnatd have been
idmin
1 that si
pretence of
legal authority, sufScieut to entitle this gentle*
man lo call lor considerable damages from a
verdict of a jury : a baiiishnieni inlo a fureiga
(Muntry of a suuject of England, inlllled lolte
protected, to whom the laws caniiol lie denied
without breach of public faith, and a dan-
gerous wound to the general system of our
I'uoslitulinoal lilierlies. Thus, by Ibe sole au-
lliority of governor Moslyu, williout pretence
of judicial Fxaininalinn, was Mr. Fahrigas sent
inlo bsaisboiKDi. If all other circumiiancei
were away, llie being sent out uf his native
coimtry by an arbitiary act of ihe gnvenior of
that island, is surely grouud enough to call fur
the rooHi considerable daiiisges. Hut, gentle-
men, you are lo add to il every circuinstancfl
of discoiiiforl. He wai, during the whole
lime of his imiirisomneni, kept in a gloomj
dungvoo i uo circumitaucB of ignoraipy ibat
14 GEORGE III.
91]
cavAi iffiedt the mind of m ntfii of ftelin|f was
omitted : be wtm put into a place set apart and
deaif^ned only for the reception of tbo wont of
maieiactora, secluded from any conversation or
oomannnication with his frienda or acquaiDt-
•nce, his neareat relations, his wife or bis fa-
mily, deprived of the comfort of a bed, and
oblif(ed, for a conaiderable number of days, to
•uhsist upon bread and water. This is a caae
of the must unparalleled cruelty ; the moat in*
geniona circumstances of torture beioff added
to the moat unjustifiable and the most lawless
eiertion of authority, that I am persuaded has
ever appeared before any court. If i^rernor
• Mofttyu can support the |>oweni of this claim,
•od vindicate himself, aa governor, by the
Slenitude of his powers, and that the sole ju-
icaiure of the inland residea in his person ;
if it was lor a moment possible for you to en-
tertain the idea of the lejilfality of such a power
beinif placed in anv man, in consequence of an
authority derived from the crown of Eoii^and :
1 aay, it it was possifaje for you to conceive that
Buch a power could exist ; try him even by that
rule, try him by that rule, and he ia without
ezcuric ; for the most des|iotic, the most arbi-
trary and uncontroutabte power thai is ever ex-
ercised, profesaeth at least to act by caliin^if
opoa the party accused to make his defence,
«nd I Mieve in no part of the globe is it
looked upon as just to condemn a man un-
heard. Let general Most3'n travel into Asia, or
visit his neighbours on the continent of Bar-
bery, he will not And examples there to justify
his conduct, in any of the powers assumed, or
in the use be has made of them : for if their
powers are not circumscribed or restrained by
any lawH; if they act, as the general professes
he has a right to, by their aote will and plea-
sure ; if that ia the rule of their government,
yet atill there is an idea of a principle of na-
tural justice that should govern their proceed-
ings there ; at least an appearance of it tliey
•re anxious to produce. 1 never lieard in my
life that it waa the avowed privilege of any
country, that a man should be charged with
mn offence, that he received the punishment
for that offence, without tbe offence being ex-
plained and stated to him, and an opportimity
5iven him of hearing the charge and the evi-
ence by which it was produced ; but this is
the case of a transaction in the dark, a secret
indignation conceived, that indignation imme-
diately folknved by the most horrid exertiona of
power upon the person of Mr. Fabrigas— com-
mitted to a dungeon, and unapprised of the
charge against him till sent onl of his native
country, and upon the voyage to the destined
place of his banishment. The offer made to
general Nostvn not to tie him down merely to
the justification specified in his plea, but to give
him leave to offer any justifi<»tiou that may
be consistent with the idea of civil or military
justice, may be called iosidioiUf because I
must disbelieve every thing suggested on aiiy
trust, if I think the offer can be of no beseflt
to him if wanted i but it naj he added to il|
Aeiknjbr False Imprisonment'^ ^ |]99
*« Governor, take yonr ideas of law frem B«r-
bary or Torkey, prsduoe yomr precedent, India
or negro law, yen are still mable to justify
yiiur conduct.*' Gentlemen, these are the
circunastaocea we are to lay before you in evi-
dence. The governor may, if he pleaaes, eo*
deavour to chaige tbia gentleman with motinj.
If be does, 1 presume he will adduce his proof
of it. But if it was possilile to decide that Mr.
Fabrigas waa a mutinous man, though tbe re-
verse of that character is but justice to him ;
nay, if yon conki decide that he was tbe worst
and roost dangerous of offenders, governor
Mosty n's conduct is still dt'stitute of any colour
of justice or law. His conduct is totally un-
warrantable, and the phHeuco he baa here eet
upi that he ia a prince with a power unbounded
and unlimited by any nile or law whatsoever«
that he is authorized to act by his own will and
pleasure, must represent this case in so alarm*
ing a light to you, that 1 am persuaded that
you, who have taken your ideaa of law and
justice from conversation with Englishmen,
and obseiTation on the English constitution,
will give all attention to the particular auffer-
ings of the roan, aa well as to what you owe
to yourselves, your country and posterity ; and
we trust, even in the very best conatructioo
that is |)ossible to put on governor Moatyo'a
conduct, that you will think the danaagea laid
in tbe declaration are not extravagant.
Basil Cunningham sworn.
Examined by Mr. Lie.
Mr. Lee. Yon are in aonie military oi*
parity ?-^Cnnningham. Yes.
Wert you in the year 1771 in the island
of Minorca ^— Yes.
In what character ? — Acting aerjeant majar
for the royal artillery.
Do you remember Mr. Anthonui Fabrigaa
being at Minorca ? — Yes.
Were you serjeaot major at the time he waa
aeized and taken into custody f— 1 waa, when
I saw him brought into prison.
Do yon recollect any orders at that time
coming in any body's name touching his oon*
linement f — ^There waa a general order given
us, that three more men should be added to
the artillery guard.
Couri. Have you that order?-— il. Mo.
Q. Waa it not your office aa aerjeant major
to trauaeribe that order into your book P — A, I
fifave that order out in the company's enlair
book.
To whom does the custody of that order
book belooir ?— When the books are writtefi
out, they give them to the captain to whom
they belong.
They put three additional men sentry npoii
that occasion ?^* Yes.
Court. Why?— il. To do duly upon th#
prisoner Mr. Abrivas. '
How long had Mr. Fabrigas been in cna-
tody at that time when this order was gives
ontP Was it immediately uDon his coming into
aaMdyy or after ha had been put thereP—
W]
F^brigai.^ M^ifn.
A. D. 1775.
(M
T« Um Wil •f my Tfcollection, I believe about
tmm/LyUmt boura after .lie bad beeo in cat-
ti45««r the evening of tbe same day ; I ean-
BOlbteerUiQ as to that.
YfiaaB teU us what arMOo it was tbat Mr.
Fikqpis ivma comsBitted to? — A, He vraa put
iabpoaaq No. 1.
Ilbaiis tWe gcDenl use of tbat prison P to
sM ii it appl£d P— All tbe prisoiiers that are
fwkj of capital offences, or for desertioD, we
onMaly pyi io Ibere.
Davoa recellect any circumstances attend-
■V w. Fabrigat's imprisonnoent P mention
asy tbat occur to you. I>o you recollect the
awmer in whiob be was brouff bt or confined P
-«To llie' best of my recollection he was
hissfbt by a party of soldiers, whether of
tbe &tb regiment or the 6th, I can't say ; he
'it in haadoafied, I think, but am
Bsw \om% was be confined there P — As near
as 1 can racoUect, shoot five or six days.
la tbat prison P — Yes.
Dang ys confioesBent there, can too tell
Ibecamt or jury whether he was permitted to
kt visietf bv lua wife or fsmHy P_No : the
had Ciders that bo should have no
witb any body but tbe prevost
I>s yon know of any orders that he should
an ba sooB byl by tbo jirevost marshal P— The
WBlry informed me that was his orders ; be-
■rifl^ it w fmk into tbe general orders too.
ioi. Dmoy* If yon mean to affect the defeo-
dmt witb tbitf, yon abould produce the order.
Mr. I^e. Well then, we shall produce it.
(L IniKSk, 4m jim know whether any body
w nmitted to visit him hut this prevost mar-
^balr— i. I doo^knowof aojy ; if they did, it
■sisairary t^ordera.
Ai jan know if any body applied to see
biiaP— His wife applied to see him, but was
Jited,aal
informed.
What is this, prevast marshal P — One that
hm tba chm^ipa of. all prisoners tbat are con-
fasdlar capital crimes; be has the keys of
Islbiaaa esneatioDer too^ as well as a gaoler P
-Ne.
Can yoQ lell os the cause for which this geo-
oooMMtlsd — tbe occasion of it P— I
Do yon know what Mr. Fabrigas is P — He
aaa mbabitant of the island of Minorca.
A native? — Yes: a Minorquio.
Do you know whether Mr. Fabrigas \b a
■an of any property, or was a grower of any
upon that island P I>o you know in what
bo lited ?-*(le lived like a gentleman
Were you acquainted with any disputes
^•sthing bis liberty to sell his wine P — 1 know
Mibiog at all of it.
IH you know any thing of what happened
^ ban aAer bis contkiemeot in this prison P
*te breame of bin after f— 'He was sent out
if tbe island.
ft
Do yoa know of your own knowledge P^- -
I did not see bim taken away.
Do yoli know of any orders touching his'
being sent P — 1 did not see any orders.
You being at 8t. Phillip's at this tine, when
be was in prison, you can tell us whether he wa»
tried for any ofi^ioe previous to bis commit-
meat there, or after P — No : be was not tried.
Crott-examioation by Serj. JDavy.
How long bad you known this Fabrigas be*
fore the time of bis being brought to ^lis pri-'
son P — I had seen him different times, being in
the island for between eight and nine years.
I wish to know in the first place whether ho,
was a quiet subject, or otherwise?— I never
heani any thing to the contrary.
What P but that be was a quiet, inoffensive
subject P — I never heard to the contrary.
Ho was looked upon as a very good friend
to the garrison, I believe P — I really can't tell
what he was; he was an inhabitant of the
island. I don't know tbat ever I spoke to bim
in my life.
What part of the island did ho live in P — At '
St. Phillip's.
There it was he was imprisoned, I presuoM P
— Yes : he was brought a prisoner to 8t. Phil- .
lip's castle.
I think you say yon have been in the island
fire years P — Almost nine years.
Then you were there before Mr. Mosty n was
appointed governor P — Yes.
You were there in governor Johnston's' time P
—Yes.
Were you there in governor Blakeney'a
time P— No.
JofRfs l^Deedie sworn.
Examined by Mr. Grou,
What were yon in the year 1771 ?— A cor-
poral in the royal artillery in the island of Mi-
norca.
Did you see the plaintiff hroujyrht to the
casileP — No: 1 did not Ree him brought; I
was a Serjeant of the guards when be was de-
livered up to me, from the 61st regiment.
Court, Can you recollect tbe time P — A, No ;
it was some time about the middle of Septem-
ber, to the best of my knowledge, in the year
1771.
In what way was he delivered? — He was
delivered to me in the prison N® 1.
What were the particulars of that delivery
to you? in what way was he delivered? — Hfo
was iu but a very mean habit ; for, by what I
could learn, his clothes and everv thing tliat be
brought in witb him bad beeo taken from him.
Counsel for the Defendant, That will not do.
What condition was he in ? — A, He was iii the
prison ; he had been in the prison almost
twenty-four hours, before he was delivered to
tbe artillery.
What orders did you receive concerning
him ? — ^That I was to suffer no person to ap-
proach the grate.
What gnUe P— Tbe prison door. -
95]
14 G£011G£ III.
AcHonJbr False Imprisonment*'^
[96
From whom did yoi* recem tb^ orden ?—
From the adjutant Iteuteoant Frost; he was
oor acUofT adjillant ; be read the orders.
Not to let any one come to that ^rate ? — Or
oonverse, or have auy oommuniqition with
him, upon any account.
Whose orders does the adjutant lieutenant
gi?e uiit ? — I imagined it was a general order.
What do you mean by a general order ?— -
Coming from the commander in chief.
Do you mean from goTernor Mostyn? —
Yes : he was commander in chief then of the
island.
What order ?
Seij. Davy, I will give you no trouble about
these things. With regard to orders, you have
g'ven us notice to prmluce the orders. The
ct is as you contend. We mean to conceal
no circumstances.
Court, 1 think the right way will be, as
it is now admitted, that this was done by the
defendant's order, to proceed with your parole
evidence, and read that at tlie conclusion.
Counsel J§r the Plaintiff. If your lordship
pleases, we will read the order of imprison-
ment, and the sentence of banishment.
The Associate. The title is,
** Orders given out to tlie troops in Minorca by
lieuienttut general Mostyn, governor of the
islaad, who arrived the 21st of January,
1771. September 15: In order to relieve
the main guard at St. Phillip's, which now
wants a sentry extraordinary upon Antonio
Fabrigas, confined in prison N** 1, general
Mostyn orders, that three men be added to
the artillery guard in the castle square, as
they are most contiguous ; and that duty
taken by them, the sentry must be posted
night and day, and is to suffer no person
whatever to approach the grate in the door
of the said prison, either to look in, or have
any communication with the prisoner, the
prevost marshal excepted, who is constant-
ly to keep the key in his possession."
** To Anthony Fabrigas de Roche.
** You Anthony Fabrigas, inhabitant of the
arraval of St. Phillip's, are b^ me, chief gover-
nor of Minorca, banished this island for twelve
months from the date hereof, not to return
hither until that time is expired at your peril,
for your seditious, mutinous, and insolent be-
haTiour to me the governor, and for having
dared most dangerously and seditiously to raise
doubts and suspicions amongst the inhabitants
of the arraval of St. Phillip's, and to excite
them to dispute my authority, and disobey my
orders ; and for having further presumed most
dangerously to insinuate, that his majesty's
troops unJer my command, without any au-
thonty from them for such false and scanda-
lous insinuations, were imposed upon.
«» J. Mostyn, Governor."
" Mahon, 17th day of September, 1771."
Q. Yon say you received this order to per-
mit BO p«raoQ to approach lh« grate of the
prison, or have anv communication with the
plaintiff: did you obey this order P — A. Yes.
Did ^on obey it strictly f — Yes, as strict as
it was m my power.
Did any person apply to see the plaintiff?—
Yes, his wife and two children.
Were they permitted to see him ? — No.
How near were they permitted to come to
the prison?— As nigh as I cad guess, about
thirty yards.
They were not permitted to come nearer ?—
They were not permitted to come nearer.
ifo you know in what way the plaintiff laid F
— He lay upon the boards.
Were there no beds ?— No beds.
Was any bedding sent to him ? — I saw hit
wife vrith bedding, which was not permitted to
be brought to him.
In short, tell the jury whether the guard
would suffer any thing whatsoever to pa»
them ? — If they did, they were sure to cone
to trouble, to punishment, by it; and I am
certain they never did.
Tell us what his subsistence was?^Bread
and water.
What sort of subsistence has a deserter if ho
is confined in this place ? — It is a general role
in Minorca, that deserters and prisoners, eveo
for capital crimes, should have provisions seot
them.
What provisions? — Such as the island af-
fords, bread and beef.
Court. Do you know whether any provisions
were brought nim ? — A, I never saw any ; there
was such a strict order, that nobody ever at-
tempted it.
1 believe there was an air-hole at the top of
the prison? — Yes.
Was any body placed over the air-hole f—
No ; but there was a sentry upon a bastion
near to it, who had orders given him, that no-
body should approach this air-hole.
Upon what account ? — For fear any thing
should be dropped down to him.
Court. Was that particularly upon this oc-
casion, or generally when deserters were there t
^No; I never heard a circumstance of the
kind, but during the time Mr. Fabrigas was in
prison.
Did you know the plaintiff? — Yes, I have
been at his bouse several times ; I was at the
island almost nine years.
What family had he?— A wife, when he
was in prison, and Bwe children, to the best of
my knowledge.
Now, during the time you have known him,
have you never heard him say any thing dis-
respectful of the governor ? — No ; he onlj
complained of his hardships, of his own bodilj
sufferings.
William Johns sworn.
Examined by Mr. Peckham.
Q. Was you at Minorca in 1771 ?— il. Yes.
In what situatioo and capacity ?— I was
garrison gunner.
W]
FaMgiu H>. MoHf/n*
How \tfag were 700 in the island ? — Almost
UBeyetrs.
Dii you know Mr. Fabrigas P — ^Yes.
DU jou know Mr. Fabrigas's situation in
Ik iriand ?— He li? ed f ery genteel in St.
PMfc's.
Did be live in the same state as the pHncipal
ahsbitants of St. Phillip's ?— Yes, as much so
m ay man in St. Phillip's.
Vh you remember any thing of his being
jBMOoed f — I saw him urougnt to the prison.
In what manner was he brought? — By a file
sfmen.
Were his hands bound P — I cannot say.
8cr|. Damf. I admit that he was with his
kuds bound, as the first witness said, and that
ke was kept in prison by order of the goremor.
Mr*. Peckkam, Do yon admit that he was
kand-eufledP
Seij. Dvoy. Yes, that he was hand-cnlSed,
Md kept in the way described by the former
Q. Was he kept hand- cuffed in prison P — if.
1 beliere not.
What sort of a place is this prison P— 'It is
itt apart for capital punishments, for prisoners
iketare under sentence of death.
Is it a prison dug out of a rock P — It is a
ssUaraneous place in the body of the castle.
is it under ground ? — No, under the top of
Ae castle.
Is it a ground floor P — A ground floor, I
Mete.
This beiog the prison, and von standing there
Is guard him, do you remember any of liis chil-
4ca coming to see liimP — I saw Ihh son the
fa« day be was confined there, a boy about
lS.cime to see him.
What did he come for ? — He bad some pro*
viMBS in a basket.
Did he apply to you, that those prorisions
■i^t be given to his father P — He applied to
Ike regiment then upon duty to give them to
kii father, iMit was denied.
8erj. Darvy, I admit he was sent hand-^ufled
to tbe prisou, as described by the former wit-
BCK : I meant to include the matters of belief
as well as matters of knowledge.
Court. For my part, I like to hear the eri-
dcnce in any case, to know the truth, and then
«e have no squabbles afterwards.
Johm Craig sworn.
Examined by Mr. Serjeant Glynn,
What are you P— A matross.
Was you in the island of Minorca in 1771 P
—Yes.
Do you know Mr. Fabrigas? — Yes.
How long hare you been in Minorca P —
IVliy niijli nine years.
What condition was Mr. Fabriji^as in? — In
ftry good circumstances there ; lie is reckoned
SDv^'ot tbe best in circumstances in Ih^ island:
Do you remember the time when he was in
tbe dungeon there ? — Very well.
You did not do any duty upon him, I sup-
FsmP— Ycs,Idid.
VOL. XX.
A. D. 177S. [9S
Do yon remember whether peopla were ad-
mitted to see him P— I am sure there were none
admitted to see him.
Do you know whether any nerson came to
see him that was refused P — I Know his wife
and children came, and they were refused.
Do you know of his being taken out of the
prison P — I saw him put on board a ship in the
harbour.
How many days after his first imprkMm-
ment ? — 1 am not certain of the days.
About what number of days was he in con-
finement P — Five or six days, to the best of my
knowledge.
In what manner was he taken out of prison,
and put on board a ship P — I happened to be
down at the quay, and saw him put on board e
boat, to be taken to the vessel.
What time was this' P^Early in the morning,
I am not sure to the time, but to the best of iby
knowledge I think between three and ibur in
the morning.
Had he any time allowed him on shoreP-^
No, he was hurried on board ; bis wife and
family were coming down to speak to him, and
the soldiers \cept them off, and would not let
them. I wanted to speak to him myself^ aid
the soldiers would hot let me.
You saw his wife and children come to him,
do you remember whether they brought anT
thing for him P — I think they nad some bed-
ding, to see if they could i^et it on board the
ship he was g'Hng to, and it was turned back
again, they would not allow any thing to come
to him ; he was put on board a boat and taken
into a ship whicli was laying in the harbour
there, the ship was under saiL
Serj. Davy. I admit he was banished to Car-
tbagena.
Coun. for the Plaintiff, You admit he was
banished by governor Mostyn for a year P
Serj. Davy, Yes, 1 do.
Colonel John Biddulph sworn.
Eiamined by Mr. Lee,
Q. Yon are an officer in the regiment that
was at Minorca P— ul. 1 was not in Minorca at
the time this matter passed.
But yon have beeu at Minorca P — Yes.
Did you know Mr. Fabri^as ?— Yes ; I knew
him from the time I arrived in the island until
I left it.
VVhen did you arrive there ? — I think in the
year 1763, aliout May or June, and stayed about
eight years.
When vou knew Mr. Fabrigas, in what con-
dition and circumstances was heP — He seemed
to me to be of the second sort of people in the
island ; he had some viueyards and some
houses, and some property, and was received
not as of tbe first r|uality, but as a gentleman ;
he was estcemcHi a man of property : 1 should
call him a gentleman farmer.
While you knew him what character did he
bear P or how did he behave himself, as far as
you had an opportunity of observing ?— As tar
H
99J
H GEORGE III.
Aetionjbr False In^ritontiunt-^
[100
ai I cotikl obferre, he behaved very well, and
bad a very good character. 1 used to em-
ploy liiin in getting wine for aie, and other
tbiogs the island produced, because I bad a
famUy ; and often he was very useful to me in
Iirocuring things at a reasonable price. When
[ was at Citadella, at the other end of the
island, he came there, and was with some of
the better kind of people ; be was always with a
don Vigo, or a don Sancbio, who were reckoned
the pnnciual people of the place; they are
nobles in that island.
While you knew him, 1 ask you what was
bis behafiour P Did he behave like a peaceable
subject, or like an unruly and factious one f —
fie always behaved with very great decency
and decorum.
Cross-examined by Seij. Burland.
Q, Do you know whether he was a man of
property in the island ?-^A, As far as I under-
stand he was, hot it is impossible for me to say
positively ; he was reported such.
He had a father living? — I believe he had,
an old man.
You do not know whether it fras bis own
property or not ? — It seemed to be his.
He conversed with the two noblemen yon
mentioned ? — Yes ; he was at their houses as
a gentleman.
Did you use to visit at his house ? — I have
been there.
Did vou ever dine or sup with him ?— >I think
1 dined with him once.
Court, The gentlemen suggest, but you
don't mean to make a distinction between the
classes there P— i4. 1 do make a g^reat distinction.
Q, What promotion has general Mostyn in
the army at tliis timep — A, He is a lieutenant
ffeneral,*and commander in chief ot the island of
Minorca.
Has he any military promotion at home?
has he any regiment P — Yes.
What regiment is it P — I don't recollect the
number ; it is a regiment of dragoons.
Do you know of any office that the general
has about bis majesty's person, any place at
court? — 1 don't recollect it ; 1 believe he has.
Serj. Glynn. My lord, we have dune for the
plainUff.
Serj. Dory for the defendant. May it please
your lordship, and you, gentlemen of the jury,
1 am of counsel in this cause fur the defendant,
Enrral Mostyn, who is charged with a misbe-
viour towards the plaintifl*, in the defendant's
capacity, as governor of this island ; the
plaintiff, Fabrigas, being a subjtrct of the crown
of England, a native of that island, a Minor-
giiin by birth, and living in the town of St.
Phillip's, (there is a reason why his residence
in the town of St. Phillip's is, in my apprehen-
SKMi, material, for some matters which I shall
trouble you with before I sit down.) The de-
lendant was appointed governor of the island of
Minora on the 9nd oTMarch, 1708. His pie-
wu gw cmor JtluMlM, wh«n prads-
cessor was general Blakeney. So far I am
able to trace back the governors of this island,
whom the questions before you have any sort
of relation to ; and any further is unnecessary.
I don't know whether it may be new to any of
yon, gentlemen, to inform you, most probably
not, the history of your country will tell you, that
this island of Minorca, whose situation is in the
Mediterranean, and which is of extreme use ia
the protection of the Mediterranean trade, was
taken in queen Anne's wars from the crown of
Spain, and was ceded by that crown to Great
Britain, by the treaty of Utrecht in 1713 : that
upon the ceding of that island, the condition
annexed was a reouisition on the part of Spain,
which was acceded to on the part of Great
Britain, that the inhabitants of this island of
Minorca should continue in the free exercise of
the Roman Catholic religion, which couki be
no farther than was consonant to the laws of
Great Britain. For whereas the laws of
Great Britain will not allow the pope's bulls,
excommunication from the court of Rome, the
inquisition, and some other matters of that
sort ; therefore a free exercise of the Roman
Catholic religion was not with the exercise of
any powers in the bishop of Rome, hut what
were acknowledged by the laws of Great Bri«
tain. They had only the free exercise of tbeic
religion, as Roman Catholics. All other rights
which they bad, and all laws by which thej
were to be governed, were to be given to tbeni
by tlie king of England. He was to establbh
what code of laws he thought proper in that
country. They were to be subject either to d? 11
jurisdiction of'^ particular sorts, or military, or
whatever sort the king of England pleawd.
They were a conquer^ people, a conqiier«4
island, and no terms were annexed to that treat j
of Utrecht, but only the exercise of the Roman
Roman Catholic religion. The king was to
appoint his governor of the island, to goyem
them by such laws as he thought proper to
direct ; an arbitrary despotic government, or n
qualified government, or whatever government,
under whatever sort of magistrate?, or what*
ever order the crown of England should think
pro|>er. There is a manifest and very wide
distinction, to be sure, between a Minorquin bj
birth (I don't speak of an Englishman that
goes over there), and the case of an English*
man: 1 just mention these things, vihicli will
be very projier for your consideration through-
out the i^irogress of the several facts I shall
mention m ibis cause. They are, in my hum*
ble apprehension, essentially necessary to your
consideration. Some time aAer these people
(1 don't know exactly the datr of it) had t>e«
come subject to the crown of England; after
1713 they petitioned for a cootirmation of the
usages and customs of Spain, and to be go-
verned by the laws of Spain, as they had been
used to be before: and that was granted, te far
as the wisdom of the crown thought proper to
grant; and there were certain regulations^
which I will take notice of by-and-by. Many
rqplatioos w«rc fluute ftem time to tima occn*
Fabrigat v. Mottyn.
Mulljr, fay lb« erowD of Great Britain, for
llii aUBnal police of (he i>tnDil. Gentlemen,
1 ihiidid infurm yaa loo, ihtl llie islanil of Mi-
Mftt oontisls ol five sepirtte ilitiiions or dia-
bia. In fnur ol' thcH ihey bnfc in«([iMraiei
WMlIy decieii. In (lie filili, which ii called
lbun»l of Ki. Phillip'ti, which is the I'nrl
^iW ialanit and itiieeunty, there the parlicular '
lanawkkh lajuat tlie Buburht, which takes In
itMtBol'Sl. Pliillilt'a mljoining close lolbefnot
rfthe citAikl, Ihal dialricl is under the imme-
itOa pwgrntpent of the governor ol'ibe island
maiuuil hy the crown. Tliere are no jiirals,
•kiek ibe commoD name of the niaeiiUatei
iitb* Mhcr ditiiions, whn are elected h^ llie
papla i b«l llic (iroper officer I'ur the |iolice of
■k« Hra**l is apiioiDteil by the gniernnr hrtii'
Rir, and I tliink hia title is mustaslaph: heia
tW ofiecf apiMiolril by ibe ^vernor of the
■knl. TbaK i* an extreme necesaity, that
Mve particvlar care abauld be taken in the re-
(dalMO «f Ibe jHtlire ol' that part of the islaod
Mhieb ■■ itBOtcitutrly contiguous to the fort of
Sl Philfip'a, and where there la a perpetual
(tmauB, for \\m take of preserving mililary
teipIlM^ A Ian ortliiaiiland, apiongatolhErB
>kc!b i* neeeuary tn nieniioii tu yau, because
Iba hiMor^ of ttie traniaclion ha* iuniediate
l^ua U It, i*. that the Jurats in the sereral
yK\t nt ibe lalaDil in Uie luur ul her districts uF the
■had, aii<i the muslaslaph in the arraiul ol' St.
Ptafcjt'a, whfcb a the Dhh dependent district
min Ibe itnm«iliate dcpeadcoce and |^*ern-
•m of th« ijMTeciior bimielf, set a price, and
iJt', anJ inramire, ujiun the Reveral comnio-
' IS. I ditn't know whether it includes all
iMiitlica. hut wine, and corn, and other
!"■((, «bi«hibey call the alTciralion, that iathe
VB^ar price to be jmid, upuo caiumoililies to
tt^L Gcnlleinen. in the year 1733, (the
AHtnc M malerial,) there was a reflation
d bjr. tlie ciowu, made by the kin^ m
I cstract that part of it that refjarris
A. D. 1775.
fetMcMM
; that it, that the
diairiclK and uni'
rnK) < that tbi
he left at full
A you Me ihete are
MMwaitUa, but these tour
■ rniUa are aytwiiyinoui
r^tt» of all the uuivemi
'■'^^ny. wiilioui ibe inlerveniion of the com-
sjoiMi, or any otJier of the royal officers,
' M Bake the ■fTuiatioa*, and setiie the assize
•aa< prima of all mariner of com, and all man-
* ■■ cf pr<» isioni, the produce ol' the island ;
' tii alau tlic price* of com imported into the
'ato4, aail buii|;ht by the uDitersiliES for the
' ftmX of Ibe jiuiilic ; and that the natives anil
'aaiababilatits heat all titnes perniilled tn sell
'A* iBia* al nr iindar the atluratiun, without
' Mf JBWrf tntioD ur the ([""^lor or sccre-
ina, nr any vihrr (Krson or prrauns acUiii;
•da iiii aulhnriiy.' You see, genllenaen,
M ibia onirr uf rouncil imports, that these
''il'* Br« ttulirr the *>Molula deipoliirn. if I
^11 wtay, uif tlitr L-rawn of Greul Uiiiain. be-
u!m tbw « IS a language that wc m this cnnn-
' .' m M ac^titiutco witb. \V beibvr to icU or
[103
n Eoglish
buy our goods, or not, does not auil
genins, the genius uf the Eughsh law. i nis is an
order made by Ibe king in council, in the year
ITSa. That urdtr of council, and some niber
proTtsioDS that were made by that order, oci-a-
therefure another order ol council was n>aile
the folloiving year, the lOlli of August, JT53,
which you will in Ibe course of tliE evidence
hate read to you. There are sonte iiiatiers \a
it I will trouble yon with. It was made ii|H)n
the conaideration of several papers irDiisniilied
from MioorcB by general Blakeuey, whu was
governor at thai time. Several ihiugs wer«
advised by the privy council. Among the
rest, I shall judt extract a few thinirs. With
reaped uf the firal ailicle in the civil branch,
relating lu the making the afforaiioua, about
which great cnmplaiiiU have been exbihiieO,
thai the governor be instructed to require the
jurats of the several terminus in the ithiod, at
all proper times and aeai>onG, to innke Iha
tame nflorations: and in case tbe taid ju-
rats should refuse or neglect l<> comply
with his command (herein, that then tbe snid
governor be authorised to make the said alTora-
lions himself: but due care is to he taken, that
tbe said alforatioiis be made equal and (general,
as ID all the things and persona lubJM'i to the
said afToratioBS, as well as at all prDjwr aeaiiiins.
This word * aeasoDs' will have some uieaning
by-aod-by. Then they go on wiih a great
many regulations. AmongM the res) is, adtia-
ing the king for tbe future, hy bis Irllers patent
under the seal of Great Dritam, tuanthorise the
governor, or in bis absence the lieutenant- no -
rernor, ur comraaniler in chief for the lime
being, to exercise the power uf civil ;{Overn'
ment, as well as those of the military, lakiog
cs^to preserve the one separate and distinct
from the other: and that tliev should recrive
all this power, but that they should be tiihject
nevertheless lo such iustruclious as should be
giveu by bis msjetly. He is lu govern ac-
cording to these direcliona containe<l in the let-
ters patent, aa also to such inalruclions a* shall
be given to him by the king. Then, among
other things, here is a direcliun, aud this it very
material : you see, it meiitiona some confu-
sioDs thai hare ariseji in respect to the ri-gula-
tioua made befort: in 175f : that it may be
proper ibr the goveruor to emleavnur to make
the iuhabilanis aensible of the great happiness
they eujoy uuder the king's proieciioti and go-
vernment, and to shew them ihnt they have not
only at all litnea been tieatrd wiih justice and
equity, but with lenity: that ihe increase uf
richea amon^nt them is iiwing, aniongsi uiher
ihiugn, to Ihe great sums of money cuuatantly
circulated from the pay of the king's furcet,
and Iroiii the nuoalier of foreigner* now ael*
tied amoDg lliem on account of their trade:
and nka the tmaoaiUD uf thrir trade, ibej
Iwing permilled 10 carry on coiumerte in lika
mauner with Ihe real of bis inajeiiij'B Biiiisli
aubjects : unil that it is therefore rxprcted. iluit
they slivuU, in reluru for m many ([real and
103] H GEOltGE III. Actionfar False Jmpritonment^
[104
rm) lH*nf flta, most hetrtily tnd effcctnally con-
cur nitli hill miyMty'g gofernor in any thinff
litf nIiuII |in)|ioiie for his m«j(*iity'f Mff loe, anu
tho hihmI of ih« inland, and demean themseWea
a» iHH^mii* |(«i(mI mihjecla, &o. and it may not
bf improper fur Iho aaid gofemor Uierefore to
int'urm them of all their prifileftei. Gentle-
men, iihserve three arc founded upon the llih
artirio of the treaty conuludoil at Utieebt, on
Uie lath of July 1718; and that they cannot
lie euiiiled to any olher privilecei than those
Bi|;nilied therein. And for the uetter infomia-
li«in theiyofi tlmt they do faiy the said articles
before them, n coiiy whereof was annexed
thereunto ; by whitAi it appears, that they are
allow ihI to enjoy their Imuours and estates, and
havo the iVev use of the Ktmiaii catholic reli-
||i«m, aiHl that means shall be used to secure it
lo theiu so tVir as is sfp-eeable to the laws of
iSrest Urttain, whieh they still ciuitinue to en-
Joy without the hMi»t internipiion« end without
any fear w dread of the court of inquisition ;
and that at the senie time muv inform them,
that, hv the ancient laws of tlhis country, the
|Ni|»e*s bulb, vSee. ere not |K'nnittetl to he exe-
cuted in his maji*«t\*s doiuiui«*uft, nor any
|ieoallv levied or puinshmeut iul)icte«l under
•ttch Jecrersu without permi«iion ot* the crown
of Great Hriiaiu : and then it goes on nnd giTes
farther directionv with ivgani to the goTeruor^s
Mitbority, and ibe necessity of* thc«e persons
ibMneaninir tbeuiseWes cbeertully to the onler
Mf the c^veraor ; wbieb is the gof eramcnt and
coii^tkiuiion of ibai country. Now, gmtletnen,
C»u wr th«t in irjk3 soiue cansidenble rrfru-
tiMis wefv made, to explain, and in some re-
■yect* lo alter, the reflations wbieb bad been
lade m the \«ar irj^i. And awHber thing is
cieariv ot^wr^ed ; thai the tenor of all tbe in-
atruuietti* 1 bare ni«d some parts of to you,
lb«wenrtsuUtions neither in trCO.nMicb leisby
the e\plAiMl^H1 «4'ibem in ibesubM^ueni vear,
If^;^, with rt^nl to ibe ailorstioo, eouhl not
IhmmMv ev.row loihearravalot'Sl. I^illip*s.fbr [ goTerameoi oC' the blAad. be found cbts re*
Ibe jurats we^^ ihi^ pierMNw who wec« to make
Ibe Adkw«iK«a IB ibetr several muveffsiMk or
4Mrt\*ts« OC leffwiisivk a« thev anf caHe^. Naw,
M lae arrival ^' Sc k\itlttp**. ibenr were a«
jiirai» ai ait : <w«a^>(ueoilr, tbat wa.<« n^ W
Made b\ tbe ^v-^Hwr vrikvi ap^MMsar^ by ibe
rere^K bi wr^V. ua'V^^T, the muscsftipb.
owv cf lS« "li 'jre iff t3« jun» nuking ibe
mF. TaCM« ibe (onrrmpr wxi »? nukv ii hias-
Stftf . bai \»i lae* a.Mrwt mere jre ua Taraai.
TWrv V i:MKJ<r \*}: 2^ 9.* W Qoixvd ; and ibai
isw li><&i '. ' ytfrtvuix-* inre was 9iK sake* as m
%^ .%A:i t .Oil a •! iiMOder Of >e«*iiicc ^ia< a tfi«
WTwrt; ^.'f Si. l^i::;i>k tbai ». wjenr la^ firv
tWMi fr . u c^^ ctwr w-tf avK caaen >si laat. :t
^i(-)< anM ^.» liw i^HujQcici^w <#t :a« «e«uxer« er
tb« ^ifMiu^ a*l euMpic >e jiannM w«o voaK
poiuoi/tfK cie«i|iisn«ee. Fjt tin
MMr«i Fuftk«Qir«. when be w^r*
tion with regmrd to wine, particnlarly in tbb
amtal of 8t. Phillip's. That was aoon after
tbe order of council in 175S; 1 belieee k
was in 1753 or most likely was the begin*
nbg of the year 1754, that general Blakeoey
made the regulation I am now going to men-
tion to you. The mustastaph was an oflieer
there that did tbe office of jurat in the other
districts : be was appointed immediately by tbe
governor. The jurats in the other districta
were chosen annually by the people, in order
to avoid any partiahty, and to take care tbal
the mustastaph shall do h» duty regularly^
that the inhabitants that have wine to aell aball
aeil their wine by turns ; tbat all the people
within tbe arraval of St. Phillip'a aball aeU
their winea by turns ; for if they were at K«
berty all to sell their wine as fast as they could
sell it, that would, as I mentioned just now,
tend to the inioxicatinn of tbe soldiers, and In
the ruin of the island. And the way tbat was
aiipointed bv general Blakeney in tbe year
1754 was, t'bat they alioold ballot, or cast Iota,
for turns ; and then the several people tbat bad
the lots to wll, should sell at an aflforatioo act-
tied by tbe mustastaph, at such a given time.
Tlien'the others shall come to their turn, aa
hit I lotted ifur ; so tbat every one, in tbe conne
of his turn, taking tbe chance of tbe bellel,
will sell his wine at or under, if be picaaed, tbe
afforation price, during the time apecifled.
This was a regulation governor Bhkeaey
made upon the order of council. Tbe peopw
of that district were all very well pleased, and
things went no in very good order. Tbe pe^
pie were glad to be so regulated. Tbis bon^
approved of', aad consequently being foond hf
expefience to be a wery good regulaiMi,
and to answer all tbe good ends of geveia-
sent, it was coaiinu^ during all ibe re-
mainder of tbe time tbat general BUbeaey
was governor of tbe isUnd of M.i
Wben irsveviior Jobosion snccecded
ifvUiwo, and tbe i:dand in very gooil order ami
iraB«iui!!ity. He found tbe regulaiien bad aa-
swened ali the good ends propped by it.
continued ibe rvgiLaiioa donng alt tbe
tbat be wfts governor oc tbe Htand. In
wiwation tbe' Hfaad w«» t^^nad by
Mestvn, ibe ervsenc deMdani. when be
ceede'd Mr J Weston to tbe gwermmcnc em iIk
iad of Mifvu^ 176ci« now five yt%n ;
preveni go««TTMr liwad ^t jWH as r>*erwie J<
bae hmad i before, and woaen
cescmony m ir,-* wvaKmb of ^^etMrai Bmk»-
sev. u weiL A^ -SE tjie cv«er«o9«a; rrvn wk«ii
be -^-mvvi a 9 :ri«rk~ Ic tMc ■)««« SfCN^ved
?f -a Eaic*4csa. invl w« aooriveii «ii'' »v tk< m*
llOiKaa^ clipnr. inis Mjitfr^iunk I; answered
la CM fMd eoiis prooueiri »y it. 1: ir idied
^eoof. «WDM<i«iaty. jou boruoav in tii« ulnnd^
wajnii hod seen mun ^ sedicimii ami *ha^mmm
•rder ta iTj^ csiiiia.
Fabrigai v. Mo-^i/n.
b Biy tnroi » ptriicular. There
are nor less, a» yoii will h« by-
I bistmilinintpnn of i lie order of
sit. which had been presoribed, yon
_J*1TJ4, bikI cnntinoeil tU tlie lime duwo,
MttrrollinK spirit of the plHinlilT ihouglit
^r td Irrrak lfarout;h bM onlvr, G«ntle-
», < «ilJ be lime oow Tor me tu lake nullce,
tl M>e to far gone inlo ibe general Uisl'Ty,
i<B«b«r (ircmaMance, nhich is nniorioiis lo
M^smllemcn nho have been «eUlt»l in lliat
ri«L M wcl) ][OTt>ru<>T« i« llie n\\rt mJIItBry
■AwLu lh>l liBve been Ihere, llisE the native
iMaiimiifriinrr-i are hut ill afl'ected lo Ihe
li(Ui, aai to >be EiigUsli ga*emiaeDt. It
irM Mch ta be wondereil at. Tbey are the
hiimiiiilii iimiirr'-| '- TItey cuoBiiler Spain
>|W cBunlry to which tbey iiught nalurally
■ tMtf; and it is not at all In be wondered
■ ikMMse people are not well itlaimsed lo Ihe
Eaftah, wha Ihcy consider as Iheir coiiqnerors.
Itfnw inattDce of that happened at Ihe lime
rfkTiBnHttn of Minorca liy the French,
lAn Ifcc French took it, which I helierewaa
a tm yf«r 1T36, the beginniog of last war :
■1 >1 b t«ry nn^nlar ihst hai-iMy a Miiinrquin
MA ima in rfelpnee of the ialand against ibe
hachi th«H*roDij^t prouf in the world thai
taj were »cry well pivased at Ihe eouiilrj l>e-
^ wmled trom the liunda ot (lie English.
tW Frnieh did take it, as we all very well
'»■>; bill, iliank God, we have Jl again. ,Or
d^ jtlinorqiiias in that islnail, perhaps Ihe
^■■if Rands BinfruUrly end mo«t eminenlly
Mr BHi wriilions, liirhultnl, and diisalisHeil
i%il t« <t>e crunn ofGreai Itrilain, that is
*kibaad ta lUe hi land of Minorca. Gentle-
te.W B, nr clmse)! to be, called for Ibis |iur-
^••a patriot of Minorca. Now patriotism
'iikry pretty thing among oureelres, and
waviuuch t» it; we owe our liberties lo it:
livohuiald have bm little tu value, and per-
^ •« sbciuld have but little of ihe liheny we
Waiftfy were it ncil fur our trade. And for
k«kc of oar trade it is not {it we should en-
MtgT pBtriiitiaai iii Minorca; for it is there
iWMiiewf'Hir trade, and lliere is an end to
WMde in ttw Mediterranean if it goes lliere.
tHbn« il li very well ; for the body of ihe
Mleof ibU country they will have tt: Ibe^-
L>r ^nnandeil ilt and id conseqiir-nce of their
atmii they baveenjoyed liberty, which tliey
•d) TOotmiw to pMlerily ; and it i* not in Ihe
T of i1ii« tjiivertiment to deprive them of
B4it Ihev will lake care of all our con-
fast* afaroad. U'lhiit spirit prevailed in Mi-
■■na, the ciinaM|neiice ofit vtauld he the loss
rfihsf CKMinirv, and of course our Medilerra-
Ma itmIe. We should be lorry lo tet alt our
ihrai free in our plantations. Gcnilemen,
kvii^ nonr ironbled you so far in general con-
eoweihcUw, tbuailUBlinn, and govern men I,
sfMia talaMi, and giten vou a hint loo of Ibe
tpK of Ibe ptaiatiir, which I don't wish lo
MhE the leaM impression upon you, unless
e d1' facU, which we shall produce,
' p ujion j'ou ; pre me leare to
A. D. 177S. [106
end to (he particular circumitaDces which
f,-,^ rise lo the mailer now eomplnined of.
The plain I iff, Pabrigas, whs aDHtivenf ihelnnn
of St. Phillip's, and within ihe arraval of St.
Phillip's, and conseiiuenily under the imnie>
diale eye of Ihe governor himself, as he was
within that district which is regulated by ihe
muslaslaph. In July ITTl he thought proper
to present a petition to §;ovemor Mosiyn, the
del'endaul, in this form : " fjhewelh, Ihai your
petitioner has now by him twelve casks of wine
of tlie produce of his own vineyards, without
having purchased so laucb as a gtape of any
other person, of which he has not sold a drop,
when several niher inhabitants of Ihe town have
>ld all (heirs, as well from the produce of their
wn vineyards, as what they houi^ht lo make
profilby; and this with Mr. Allimnndo th«
luslaslaph's permit. That the petitioner, on
the asih instanl(July} applied to Mr. Alliraundo
for measures to sell wine by, of the rale of Iwd
duublers per quarter less ihan the afforalion
price, which would have raised aprofil to Ihe
troops and the poor inhabitants of St. Phillip's:
hut nntwithslandioff his demand was very rea-
sonable, anil conformable to the expre^ dispo-
siiion (direction I suppose he meant) of iha 6rst
article of his mnJEsly's regulations of 1763, re-
gulating ihis island, where it iseipressly men-
tioned that the iuhabilanis shall always be per-
iniilcd to sell at Ibe price of the aRbration, or
noderit; Mr. Allimnndo refused his petiliOD,
telling htm that he would not buy his wine :
and that this is not only against ihe reason and
justice of the public, and the garrison of 8L
Phillip's, but also contrary to his majesty's or.
ders in the said refrnlalioD :" aud he menlions
that the mustastaph had made (ifiy casks of
wine, and sold ihem. Now, gentlemen, two
or three nbservalions occur, before we go any
further. In the firsl place. Ibis gentleman, if
I may call him so. Ibis Pabrigas, goes upon Ihe
idpa of the regulation of 1752 bring disan-
nulled. In the second place, lie goes upon
Ihf idea, that Ihe nnler thai was made of 17S3,
was uiiiversnt over all the island, without dia-
tinclion of this district in Ihe arravalof !4I. Phil-
lip's, in bath which you see he was mistaken.
Annther thing, which dou't slrlke so imme-
diately from what I have read, and yet here
give roe leave lo lake notice of it — il is art-
fully ihmwninlo this petition, as if the good
of ihr garrison was very much concern^ io
his having his petition granted. And, gen-
tlemeo, I do assert, and shnll be juslitied in
Ihe asseriiiin, I dure say, by your opinion,
before 1 have dnne, or at least before Ihe evi-
dence is gone through , that his design, from ilia
beginning lo the end of it, was la stir up sedi-
dilinn and mutiny ; and amongst Ihe resl, par-
licnlarly to pniot 10 Ihe passions and inclhiations
of the soldiers of the garrison lo lake his part
QgainsI the governor. This petition being pre*
seiiled to Ihe governor, the governor called
upon Mr. Allimundo to give an answer to tbia
man: for you see be complained, ihsl he,
fabrigas, had not ibe permuaioik to sell bw
107J
14 6E0K0E III.
Aaionjbr False Imprisonment'^
[108
own wiae, Allimaiido havinif refosed him the
measure by which be should sell it ; and in the
next place, that Allimundo himself had sold bis
wine. Allimundo did gi?e an answer to this ;
for the Koremor, willing to serre ever^ body.
And to act with the most impartial justice, and
being uneasy himself, that any Minormiin
should be uneasy ; for the uneasiness of a Mi-
Dor(|uin perhaps diffuses itself further than a
particular man, and is a fit matter to be at-
tended to by government ; he called upon Alli-
mundo to explain this matter. Allimundo
ga?e a full and clear answer to the matter ;
and stated in tliat answer, that Fabrigas's com-
plaint was, because his turn for selling wine
liad not come, according to the lots f men-
tioned just now, and that was the only reason
why be had not j^et sold a drop ; for no man
ODuld oell a drop, till by balloting his time was
€ome : so that rabri^ bad nothing to com-
plain of. But he insists^ that no man ought
to be bound bv the lots, but that every man
bad a right, by the regulation of 1752, not
taking notice of the regulation since that, but
that any man might sell under the afforation
price: therefore be, offering to sell under the
afforation price, ought to be permitted to sell
his wine without waiting for ballotting. He
was mistaken here: first, because that order of
1759, had been rescinded, and was not the
iHnding order : second, that be lived in a dis-
trict, where it was not to be regulated by
jorlt8« but by order of the governor : thirdly,
that the regniation which had been obtained in
the former governor's time had been the way
1 have represented to yon : in all which parti-
cular heads he was grosly mistaken ; and
therefore he had no cause or complaint that he
bad not sold any of his wine, his time for sale
being not yet arrived, according to the regula-
tion of the lots. With regard to the other part
of the complaint, that Allimuudo sold his wine ;
Allimundo freely insisted, that he had a right
to do so. He claimed a right which had been
enjoyed by all his predecessors, and which he
could not, without an order from the governor,
depart from, not only for his own sake, but for
the rake of his successors ; that he had a right
to sell his own wine without resorting to the
lots, and that he had not bought any wine, but
■old his own wine. This answer Being given
by Allimundo to the governor, the governor
upon that sent word to the plaintiff, that he had
eoquired (for he had not taken Allimundo's
word for it, but had enquired) into the matter,
and found what Allimundo had done was right,
and aflbrded no cause of complaint. This was
aome time in July. Upon tbe 11th of August,
ibis Fabrigas thought proper to prefer another
petition in these words, *< 1 had the honour to
present a memorial to your excellency, sbew-
mg, the transgressing and not observing in
the said town two regulations given upon the
S8th of May 1758, by bis Britennia ma-
jeaty [still adhering to the order of 1759, as
<f tbm had been no sabaequent order] that
te iababilaiit ahould ha pemittad to tall bit
fruit at the fixed price, the afforation, or under i
secondly, that no commander, judge, or of«
ficer, be allowed to have any traffic, bargain,
or so forth : [It cites a great deal of this order,
and then he takes notice] that Allimundo, who
does tbe functions of mustastaph, bought
grapes and made wine. And then he offers to
sell to the inhabitants in the garrison of Hi.
Phillip's, twelve casks of wioe that he has got
by htm of his own vineyard's produce, at two
doublers less than the ordinary afforation and
fixed price. The petitioner has applied several
times to your secretary's office for your excel-
lency's decree [that is, for his answer]. Your
secretary told your petitioner verbally, that
your excellency was ratisfied with the answer
given by Allimundo ; at ^hicli he is surprised,
as he is ready to prove, in a judicial way, the
truth thereof." [Then he prays the governor
to give his decree at the foot of the ntemorial,
and to have tbe satisfaction to justify himself,
and to prove his charges against Allimundo.]
Gentlemen, this second petition being pre*
sented to tbe governor upon the 16th of Au-
gust, which was A^e days after the date of it,
governor Mosty n took the only possible step for
a man in bis situation to take, consistent with
wisdom and justice ; and that is, to refer both
tbe petitions, or memorials, as well the former
as tbe second, to the proper officers of justice,
for their determination. Accordingly he did
refer not only the two petitions, but also tbe
answer or justification of Allimundo. He re-
ferred all these papers to the only proper oflioer
there to i;efer this matter to, namely, the soli-
citor general of tbe island, and Dr. Markadai,
the first law officer, in order that they miglit
enquire into the matter of complaint, and im-
part their opinions. They made their report
upon the 31st of August to the governor.
Now you will see what were the opinions of
the lawyers of the island at that very time, that
the orders of his majesty in council, of tha
year 1752, relative to the sale of winf, had never
been executed in the suburbs of tbe castle of
St. Phillip's. You see it is just what 1 told
you at first ; that is, the arraval of 8t. Phillip's,
that order of 1759, was never understood to
extend to that particular district, which is under
the immediate government of the governor
himself, that is the place where this man dwelt.
Then they ny, secondly, that the custom ob-
served in the suburbs, upon the sale of the
wines of the inhabitants, has been, that the
mustastaph had the direction of distributinsf
tbe measures among those inhabitants, whicn
was continued till some years past; when lieu-
tenant general James Johnston, lieutenant go-
vernor of the island, in order to avoid com-
plaints, formed a regulation, dividing the raid
suburbs iuto four quarters, and onlered that
the wine should be sold by such of the inha-
bitants unto whom it should fall (1 see I am
mistaken ; it was introduced, I see, by fo^
vemor Johnston), which cegukition at thiatune
exists. Tbe third is, that Antonio AUimimda
waa daded miistaatifb. Foiirtbly» tbat AlU*
Tahrigat w. Molfyn.
1, JiMqih Nelo. U«lph Preter, and Jo-
fcLnlie, who aie tlie iirnniiB ihai have exe~
n (be office nt niusUiiiapli iif llie uid
lAi i<ir soieral yenn |i»l, b«ve beeo oc-
oa^N^MparchMetpvpc* furmak'mg w'met
-4a w the iltfcace of Allimunilo. Tben
tnuliff
t office
. .JHke wine from grapes bnui^hl
tj Itannaeltes. And Ihen lastly, dial lite
MkiNf «f Mine from grapes boujjtit bail nnt
tna rvckoiMil an illicit iraflic, nor iDcoin-
pMt •riih ihe ollice of baillfl', jurat, musta-
«ifb. »mA wo foiili. Now Bee <*liai lueilioj
IMM •fficen look to be InronDed of this matter,
» •»*«■ W give the answer to the go»tinor.
" TbM, Mt, n wbat in abedieace lo your excel-
Inn'* ontor, we can inform yoo of, ■cconJing
M aut a|ipeani u result from the ileclaralions
wbieb we have received upon uatli from tbe
pnfcraat pvnoru, wbose original depositious
raanin atMOK ibc arcliivpi of tbe royal go-
Nnnunl." These two observations naturally
•eenr. In the Bret place, that tl>e governor
ImIi tke «Dty method he could, uuon the
••■litoiiit of this mia, to refer it to the only
tntwrnScrr of tbe island, upou whose report
MmfbCikpeiHl, with Ibe power of cjcamina-
(an its till* officer, of all praper persons upon
a<fc, tot Ibcir iDformatiou. That upon the re-
Mdt if Ott repnri of tbia oiGcer, it appears that
IkemapUinl uj' Pabrij^aa was groundless. It
9m gi«UDj|e«s both wilb ri^pecl to bis claim
ti (iif ht to wll out of the order, by ca^lin^ of
hm: ii trai ^rouodlea*, likewise, wllb regard
ti lia (MBiilaint a|;ain8l Allimundo, for having
■Uvw lumoelf. Fur ihey aay that the re-
pMas maile in 1753, had never applied to
•W tmxtx «f 8t, Phillip'*, that is, the arrstal
ti Ik. t'liilli|>'s. Tliey tay, secondly, that
Mk(B tlMi iliatrici lliey bud alwuyg aolil their
>ae by IvU. And ihry nay, thirdly, that ibe
^■Uataph, and llie other officers that do fix
thaaAvml'iun, liatealwavi! lold wine the way
tat AUliniioihi lis*. This was the answer
Ihal was given, and this the re|<ort that was
Itade !■ tbe {(ovcruor, io consequence of his
Inin^ rerrvred lo tbem the two petitions of
PsirifM. M well a* the aiiswrr of Allimuada
•* (far pHit»D. Of-ntlemrn, they alWrwards
aa^ a«atber rejMri ; for this, I lohl you, wu
» IIM 31*4 of August. They inaile amilber
>rf»ri luur ilayi slier Upon the 4th of Seplem'
fcn Ibi-y (five an account, for the governor
>i* tery 'tniniui lo know in what manner
^nt teatltnwn bail proceeded. (You see
to«* i* a ycneral alliitjoii al the fool of the
npavl, to ibfir haviut; examined proper per-
>«• aoAD oaih.) The gniernor was exceeil-
■;lj Jraimua to know in wbol order these
-iWiBFD b*d prorerdeil, to lee wbelher all
■■I* care had been taken to avoid ouuiplaiol,
A frum *n rarnett dmre he bud, that all
-i.-i*r% ut oumiilainl mij'ht subside, that there
M b« one ■luuerul riilo of good goveru-
■ prvaarvrd aiitun^ Ibe Alinoriiuiusi and
_*lBMe^i*mtiit ba answerable to lb* crown
A. D. 177S.
of Great Britain for any improper coniluct.
" We,upon tbesBOJeday.thc I6lh, that is iba
day of relerence, we wrote lo the said Allimun-
do and Fabrigaa, citing them by our coniinis*
sion, and orderini; lliem to appear upon lb*
aOlb ; and in ohMlieoce to which tbey having
appeared, we again ordered them to appear on
the 33d following with Ibeir proofs and docu-
menls. At their appearing on the 23d, we de-
manded of Ibem Ibeir proofs and justification ;
when Fabrigas answered, lie did uot intend
to enter into the same, till he had obtained the
decree nf the 3d memorial, that is, the answer
of the gorerour in writing. On the 26th, Fa-
brigas was convoked in your excellency's of-
fice, where it was asked, what action it was ha
inteuded by these memorials against Allimundo,
whether civ d or criminal P And having time
given him to answer, he replied, a civil one;
all which appears hy the acts to which we re-
fer. As the ssid Fabrigas hath not this day
represented before us any proof by way of jut -
lificBtion of his ssid two memorials, wu there-
fore, for (his reesuu, have the honour to submit
the same to the conaideration of yuur excel-
lency's wisdom, ibai you may not impute to
us the least omission of Ibe liTely desire we
have toexecule the orders of your excellency."
This is dated the 41b of Septemlier. Upon
this order, this report that was tben made
upon the 41b nf September, which gave a
clear satisfaction that every thing bad been
done with proper care and caution to pre-
vent any complaint, Ibis Fabrigas presented a
third petition or memorial. I call Ibem peti-
tions, remonstrances — I don't know what nam*
lo call them hy, but still they have Ibe title of
a petition — he called it Ibe humble pelilion —
and in this Ihird, as in the second, be had com-
plained of Allimundo. Now here is a reraon-
Btrance against the judges :
That " whereas tbe judges delegated bjr
yunr excellency"
- Court. Of what dlU is this?
^eri-Davi). I haveooprecisedatetolt. "Tba
judges have denied bim a communication oflba
answer t;iveo by Allimundo, who does the func-
tions of mustaslaph of St. Phillip's: prays you
will be pleased to order tbe judges to receive tba
witnesses which are produced lo juslily tba
ai tides." And then follows upon this, no
less than twelve articles of impeachment, a* '
it were ; arliclcB upon which the witnesses
were produced to prove some facts committed
by Allimundo against his majesty's orders,
and to prove some injustice done by Alli<
rnuodo against the Minorquins inhabiling ibe
town of St. Phillip's, and against bia majesty's
■ronps of that garrison. Then followit a siring
of twelve articles, which 1 don't mean to read
to you now : you will have them by-and-by
in due order. Then he siieaks of the prices of
meat, fish and several olher things, all which
he complained are not well dune ; and there i%
a general complaint throughout the govem-
ment of all tbe otficers, that all the ftlinorquina
are ill-uwd by the misconduct, mitruk and
Ill]
li GEORGE III.
Action fir Fake Imprisonment"
[lis
mnmaDBgnement, by the under offioen of the
garrtsoo. Noir, gentlemeD, you would have
•apposed, if governor Mostyii bad been, what
the world knows be is not, a rash man, be
might, perhaps, have very well justified some
ceosure at Itast, of what sort is another ques-
tion, upon the coodnct of Mr. Fabrigas, whose
oonduct points very strongly to sedition. For
consider where we are speaking of. We are
not talking of the city of London ; we are
not talking of a town in Etiflfland; but are
talking of the town of St. Phillip's, just at the
Ibot OT the glacis of the citadel : and this stir-
ring up sedition amon^ the Minorquins, who
were already too ill disposed to government.
But governor Mostyn did act in this business
with that candour and hamanity, that delibera-
tion and wisdom, for which his character is so
eminent. And therefore, after this third me-
morial and articles, the next step he took was
lo take farther advice of all the superior law
officers and magistrates of the island, that is,
on the 5th of September, 1771. And, gentle-
men, he ordered his secretary to write a letter
to doctor Markadal, (I shajl not pronounce
their names well) the solicitor general and
the other persons ; and, upon that, they gave
this answer. He sent the 5th for their opi-
nion ; on the 10th they gave their answer.
•*We received your excellency's letter of
the 5th instant, with twelve articles exhibited
by Anthonia Fabriflras annexed. In answer
to the contents of the said letter, it appears to
as, that in sundry of the said articles he men-
tions and represents injuries or iin|>oBition8
upon the troops quartered in St. Phillip's,
which, if divulged among them, might occa-
sion tumults and disonlers, and also raise mur-
murings against their proper superiors, of
whom they are suspicious, and hove not a due
regard to their own advantage : from which it
appears to us, pernicious consequences may
arise in military discipline. This our opinion
we submit to your excellency."
Upon the receipt of this letter, still the go-
vernor was determined there should be no
person unasked ; therefore he, upon the receipt
of this letter, sent it with Fabrigas^s answer to
the assesseur criminal, who sits as the assist-
ant to the governor in trying ofcivilor criminal
causes, the great judge of the island under the
governor: he sent to him for the sanction of
nif opinion upon it. The answer is wrote to
the secretary of the governor, and, ' having
examined all the said papers, it appears to me,
that the opinion of the siid gentlemen is very
learned and just.' So that you see he concurs
entirely in opinion with those other gentlemen
that had made the report that 1 read to you just
now. Gentle<nen, when this was done, then
and not till then, the governor, the defendant,
feneral Mostyn, sent an answer in form to
abrigas; and I flatter myself that you and
every one who hears this, must be of opinion,
that the governor acted with all possible cau-
tion in this business. He writes, therefore,
Ihis answer \ for you set the other had pressed
for an answer in writing, and would have it in
a great hurry ; bat, however, the ^vemor
would not give an answer till he had informed
his understanding upon the subject, by all that
could give him information and advice. ** Un-
derstanding that Antonio Alexander Alhmundo
bath acted in olie^lience to the directions of his
superiors, as in the manner practised by hit
predecessors in the said suburbs, by those that
held the office before him, as it appears to us
(mentioning their names) upon a charge set
forth in the representations made by Fabrigas,
and upon the other part by the said petition of
the people there to attend to the regulation made
by governor Johnston [I should have tokl yon,
that all the Minorquins there prayed it miffht
be continued] for which cause it is not regular
to receive witnesses to justify the difierent ar*
tides exhibited by Fabrigas, some of which
teem' to tend to disturb the public tranquillity,
in prejudice of his majesty's service : [now,
^ntlemen, remark this] notwithstanding which
if Antonio Fabrigas is sufficiently entitled to
pretend, that Antonio Allimundo hath commit-
ted any crime or misdemeanor, he is to apply to
the royal governor's court, aud there make hit
complaint in the usual form ; where he wiU
have justice done him according to law, that
is, ** according to the law of the island." Now,
any mortal would suppose that Fabrigas, if he
was not possessed of a most malignant and tui^
bulent spirit, woold hare acquiesced in thit»
and taken such measures as, accfirding to the
law and constitution of the island, were open
to him, and not have plagued and teazed the
governor with reiterated remonstrances and
complaints in matters which were out of hit
own principal power to relieve, if there wat
any cause of complaint ; though, by the way,
the governor had the strongest reason to sup-
l»ose he had no cause ofcomplaint. But it wat
the determination of this man to drive home
every thing possible to the governor, and to tel
up an opposition of the Minorquins subject to
his civil government, and the garrison subject
to his military guvernment. The unavoidable
consequence of this would have been ihe total
loss of this island, and infinite bloo«1shcd, which
must have ensued upon the revolt of this island.
However, the man still uses a great many
threats, which you will have a particular ac-
count of by-and-hy. The governor thought
proper on this, (since yon find all which had
been done, and which this Fabrigas complained
of, was the pursuing the regulations which had
been made l>y governor Joliuston — you will be
amazed, perha{>8, at my telling you — it is the
strongest proof of the lenity and moderation of
the governor that, perhaps, can ever be ima-
gined) in order to see whether that regulatioa
was a rii^ht one, and ou^-ltt still to be cuntinned,
the governor summoned a meeting of the inha-
bitants, even Minorquins, the inhabitants of thit
district, in order to take their sense of the so-
vemor's regulation, to sell by lots, or wlieiner
that regulation should be abolbhed, and that he,
or any person within the district, mty be at
Fabrigat v, Muili/n.
I wise H Tut u Otty cm anUer
in |iriw. Ill onter lo lisre their full
! nikltvr, he look the utmoKl ciu-
MK iloclor Markadal anil
tiled all ihe iohabiUDU;
e ibey nughx be at lull leisure from
>cvanl(, (fur it »■« about the time of
, ifnm) that xhey might le ut full leinure
k allnid Bad meet logcllicr, they apjioioted
■* -' - - ■ aSuiiday,
abatwaftill meeting. Mr. FabrigBs,iii
tteMEBp lune, aaei nil ^aioa, (as if an e^tion
■w gBtBg ftrwaril) be u»e>l all imaginary
f»^» V> Itcl together at many people u he
CmM niMl«r to think wiili him, and lo have
■kit infulalian of the f;overtiur aboliEhed, aod
Aaltbe nmm he cumplained of might he put
a tad V, AnJ the matter he required eoforced :
taiOMb wu Ihe tenieur Ihe inhabitants, that
lkar« «m* ■ laojoriiy, I am told, olmoat tneniy
load*, of all the lUinorquius ivho attended
•fan ilul 8«0riay ; all uleaxed with what bad
hiMiknc by gofernor Juhostnn, and desinmi
ti CMlia»« 'ibal rvgiilation. They liiund it
■Ml bmefieiaJ to them<el*eii ; iliey found it
MMsded inlh lewt trouhk; they fimad it most
hr tbcir |itofil: ihey hII Were acainat their
(^■(rynaMi Palirii;a*, and all prayed tint the
■ ■■MUhiiunt innde by noveraor JnhntlOD, and
kid MBtionnl to that tiiue. raii,'ht tlill be used
N^coDUaaed withnulsiiy ulteraliou. Fabrigai
•■•ow Trty much diualiefieil. Now I will
mI joa a it'w abjection. All this it iinlawrul.
hoBw ii ■*■!■ uo a (Sunday, anil the tense of
tm (nylr laiten upon • Sunday is no sense at
^; tititihrr inmanre oflhe turbnleiiceOf his
A^Mkm ! all vai nroni; ; nud, at the name
M, * threat thai hr would now prefer a peti
ba. aad ke wmjld luke care llwl there should
W !■■ tanodred men aimed at hia heels! oow
Itf ar nk any man (hot bears me, whut the
fBMHir wa* to do? The goTermir (whose
qMwMiwt Inferior to his other qualilieslhat
■ir Wf th* tliararler of a gi ntlemaii and a
aMm}»W»wl to beio ffightrned. He wai a
•■■((tM prrvonal tear ; and ■ AliaonjMin ap-
pviiiil «t llie head of t-to hunilred people
«■■!, Ih«u|t)i it i* irrious, and deserves consi-
taawa^bxwei'rr, ilie governor's spirit iths
■■b, Ue Jul Hut coiiToke Hoy force in order to
■^ fbii* : kul bo look a Tory wise step ; and
kn «■• (for the upki dny wa» the time of this
^■nvdiua h« had cauM lo apprehend,) he
|ti« ■• latitation l<i Ihe comuiiodiiig nlKcers
■r Ike 4dT«rrot >«Kiii>enli to meet him next
^mwtmg % mhI if ih' te Itud been any force at
llr herb af Mr. Fobritcax, the comuinnding
ittMfa beiW Ibni .ii the honse, it would not
Mvapaiiy liiuir, iiFrhapa, to summon iheir
tan M trprt it : but lio wnuld not sumtiion
fta hetr •> Ihr laland any farther than I tell
j-^. Ai ihi' liiii« llii* pctilioo irns lo be pre-
> -MrJ by t'«briu>u <*ith two hundred itieo at
w«ti — 1 inittake ; lb* |ii>litiaa vras then
-Tiaiil. aad hc WOUU COOM for Ul UUWtr
A. D. 1779.
(he next morning with a fore« of 300 men at
his heela — the govero'ir thought proper to ask
the advice of the officers who attended there,
nhal ought to be done with this man, and
what wan lit to be done ? Every on« of tha
officers who allended upon the occasion con-
curred in the opinion — and it was a matter
alwut wbich I think there iwuld not be two
npiiiioQs, — that nothing was safe lu he done,
b<it iuimediaiely laying hold of this man tha
first opportunity, and sending him out of the
island. And he did so. Theru is the cniu-
plainl. Now, gentlemen, I have let you into
tbe whole history why this was dooe that Fa-
brigas coiDplaios of ; why Fahrigas was kept
(ilose, OS he complains ol. A mau that threat-
ened an insurrection in the isbnd, it surely
would be imprudent io the governor la luiTer
any of his friends io the inlaDil lo have access to
him : general Moityn therr lore sent him off as
soon as possihle, which I believe was in li)ur or
live days, into Spain, with a prohibition to re-
turn to the island again within the cuune of a
year. Hut all this, say they, this is Ivranoica),
this is arbitrary ; this u w hut English ifotem-
Rient, anil English laws, and an Eiigli.'in court
of jiietice cannot bear, tiay Ihey, it is a very
improper behnvicmr io governor ftloslyn. aoil
onghl lo be Ihe aiilj|ect, the mailer of a civit
action : Mr, Pabrigas therefore does very right
to lake a voyage over to England, lo coma
here lo Guildhall, and take Ilie senne of an
English jury uprin governor Moilyii's beha-
viour. Lei me ubserve lo you, ihis is uol »
□uvel proceeding; for thougfi, very liirtunateljr
for governor Hostyn, it is the liriil lime that ha
lias had ati occasion lo behave in tliis way, and
to proceed in this particular manner ; yf I liir-
raer goveriiorti of Ihis istatid, upiin much lesa
occasions and emergencies ihan this, have dona
the very like thing. Do not be aHloniahcd.
geollemen, nor lei it fright you, when I tell
you, that the guvernor hai an obioliile right ti»
do it, and is accuuulable to nobudy but tlia
privy 'Council. The governmeot of that l^lauj
IS, io many respects, an arbiirary government,
and as desjiotic, io many instances, as any of
tbe governroeola in Aaia, |iarticnr<rty in the
part now in queition ; and |el governor Alos-
tjD would Iw »orry, for his own character'a
sake, if it was in his power, to take any legal
advLiniagei coDCcniing tbe impropriety of
bringing ihe action here in Englund. Hia
character calls upnn himf which is lo him the
Srst of all considerations, to explain his con-
duct in the fullest manner possilile. A general
acquittal of liiffl upon the idea that the law
won't punish him, would be but a poor s&lis-
faciioii IO governor Moslyn, ivbo is charged in
this action with having exercised a tyrannical
power, tietilleineu, the general tenor of the
trenerat's behaviour, from the time of hia being
first appointed lo this government live yeura
Dgo, to the moment belast left the ialarnl, has
been to preserve and to maintain onler and good
govecnnient, wiihont a wish, or rather with an
Bblioneute, to opprcissny one man Ibat is un^c
115]
U GEORGE III.
Action Jbr Fahe Imprisonment-^
Ciia
his gorernment there: least of all could he
€ver wish to oppress or injure this maD, too
incousiilerable iu bis own particular private
•tatinn of iii'e, too remote from a counexion or
acquaintauce with the governor, for him to
have made him the object of vindictive— 1
voii'tcall it justice, but of any vengeance or
resentment upon any occasion whatsoever.
When the man made a complaint, he wished
to enquire into the grounds of it ; aud when he
found it was groundless, aud the man reiterated
tlie complaint, however he might be teazed by
this reiterated complaint, (for it is grievous and
troublesome to a man to be teaz^ with new
remonstrances and petitions, when he sees the
impropriety aud impossibility of granting what
M requested) still takes all possible occasion to
enquire into the grounds of the complaint, to
answer the complaint. But when, after every
means had been tried, the man threatens the
dissolution and destruction of government in
the island, it became bis duty then to treat this
with some seriousness : and yet for the general
^^d of the island he did it, never complaining
of these two hundred men that were to be arm-
ed, only laying hold of the man himself, and,
as soon as a ship could be got, to send him out
of the island. And now governor Nostyn is
called upon in an action. The laws of a foreign
country, gentlemen, are matters of fart here;
and it is very well worthy consideration — it is
very well worthy of consideration indeed (I do
Dot mean to trooble you with a discussion of
that question ; but since his lordship has hinted
about it, it is very well worthy of consideration)
whether such conduct, upon such occasions, in
auch a place, can be the subject of litigation in
a court of justice in England; it is very well
deserving of consideration. I know very well,
upon a former occasion, when an action wua
brought against the governor of the island of
BarlKidoes, by a man who succeeded in his
absence to the government, without any parti-
cular aj^pointment so to do, and having been
guilty, in the governor's absence, of some mal-
practice, (he was ap|)oiuted by him, but had
not t(K>k the oath) there was an action iu that
case brought against the governor for some
proceedings against his deputy, as was the
subject of an action, and there was judgment
in that case given for the plaintifi' ; but a writ
of error being brought, and that beincf removed
afterwards to the House of Lords, that judg-
ment was reversed. As well as 1 recollect it,
one of the chief grounds iubistcd upon on the
part of the defendant was, that being a matter
abroad,— (for that it was upon de^Hurrer to a
plea)— that being upon a matter abroad, it was
not cognizable by the courts of justice in Eng-
land. In answer to that, it was insisted —
Court, Was it not the main question in that
trial, whether the council of state, or the go*
f eroor of Barbadocs, had a power to commit ?
8erj. Duvif, That was a question. I have
■ir Bartholomew Shower's parliamentary cases
Upon the table.
Ctmrt. I think the courts held they had no
power to commit : the House of Lords held
they had a power.
Serj. Davy. Your lordship will find the par*
ticular reason of the reversi(»n of the judgment
is not stated, but only that the judgment waa
reversed. But one of the particular reasons
was that the island might be governed by par-
ticular laws, and that he was not responsible
here for what he did there. To this it was an«
swered and insisted upon by the other side, that
they were governed by English laws; that
they were not a conquered country ; that thej
were inhabited by tlie subjects of the crown oif
Great Britain, who came of English or Briiau-
nic subjects, going from Great Britain to thai
country to reside and settle there, and were not
like the case of a conquered country. The
reason of it does not appear. Upon that re-
port, the House of Lords thought proper to
reverse the judgment. In the present case,
see how strong it is ! for every objection made
upon that case applies with double force here.
Suppose it comes to that question of law, will
not that question be of too great magnitude for
me to say a single sy lluble about it ? This that I
have now mentioned, and your lordship has
gone before me in what I was going tosav, is
a very important question of law indeed; a
very great question ; a question of the first
magnitude, and which will therefore deserve to
be discussed and determined by the highest
court of justice this kingdom is acquainted
with. It is a question of infinite difficulty and
great im|>ortance, with regard to the respon*
sibility of the governor in a conquered island,
with respect to their being amenable to foreign
sub^ts, with regard to being aooenable Tor
their conduct.
Serj. Glynn. They are the descendants oC
foreigners, all of them.
Sei]. Davy. 1 mean those that are bom in Ui*.
norca, that descend from the ancient inhabitants
of the island. They are subject to be governed
by whatever laws the king of Great Britain
shall think proper to impose upon them. The
king of Great Britain may, if he pleases, alter
his government of that island, and give what
laws he pleases under a general ratification ;
and they are all bound by it. I say, a discus*
sion of that question, as a question of law, is of
great magnitude. I do not mean to trouble
you with It. To be sure, it is too much for my
grasp ; it is too much perhaps lor the grasp of
any one man sitting in judgment, much more
for roc standing here as a counsel, who have no
judgment at all, only a duty i owe my client ;
and perhaps, and most probably, it n ill beaquea*
tion to be referred to the determination of the
court above. And you, at the same time, will
certainly, if you think nmper to find a special'
verdict in this cause, which I suppose you will,
you will do well to consider the subject with
regard to the damages, which we call contin*
gent damages ; it was therefore exceeding fit.-
to mention all those circumstances to you, not
only with regard to the matter of fact, but also .
tor your considivatioa with regard to th»,
libe
k. •»
117] Tabfigai v. Mosiyn.
^UMfCi. For iappo* (it is upon that ground
I mw aiMren you) rappoie the go? enior tnis-
fmktbe law apon this oocasion; suppose be
fns wrong, and ought not to ha?e proceeded
kiis way ; suppose that notwithstanding all
fbf spinloiis he had look, as well from the ciTii
in ttieir different departments, the law
•ad the aitcsieur judges, and so forth,
1 bT all the military officers, whom
bled together upon the threat of the
suppose, notwithstanding all
opinions, he ought, instead of doing
km did, rather to have kept this man a
, and brought him before some tribunal
tried : suppose that ought to be his con-
that therefore he did wrong, instead of
insprisoa the man immraiately, and
him, upon his own authority ; now to
W sore the assessment of damages b^ tou
■■St go upon that supposition. I think I
speak airiir upon the occasion : 1 mean in this
and aO other occasions to act with character :
I suppose that to be so : what mighty damages
s^fht, oo that occasion, to be giren against Uie
teteiuui ? He in that instance mistook the
fiae of his duty ; he acted as he thouffht for
dw best, lor the safety of the bland ; but he
acted sroctpitately. Why, let Mr. Fabrigas
er bis menos (for I do not know whether he is
in Ksgland himself or no), let them pnt one
•uesiisD to themselves to decide it. If (reneral
MsrtWB bad done the thin^, the not doing of
wlien they now complain of; if ffeueral
Hastyn bad brought this man to a trial, what
■ifbt liaTc been his fate? The least sorely
8Mld hare been that which he now complains
iC,laaishnient for a single year; for with re<
' W iho imprisonment, it is not an unusual
any country. Upon great and
occasions, it is not an unusual thing
fine a man for a few days, and debar him
0 of his friends : that is not an extra-
tbiog. But suppose in that he did
1 will suppose the whole to be wrong.
IVbeieiu is it wrong? It is wrong from a
Misapprehension of judgment, from a mistake:
m is wnmi^ merely in respect to mistake. It is
■St wroog from malice, from wilful wicked-
ness towards this man, from a tyrannical dis-
Miiioo, from a desire to oppress or hurt him.
If ibia bad been the case ; if the governor,
icspoctable as his character is, could for a mo-
be suspected to be capable of acting in
nanoer, from tyrannical, cruel, or wicked
vrs, be would hare done ill to call upon
to be bis advocate ; for though even in that
t 1 would discharge my duty towards htm,
I could not have spoke with cheerfulness for
But here 1 consider him, and the whole
of bis conduct bids me so to do, as a gen-
wiiling to discharge his duty to the
erawa ; to preserve this island, as it was his duty,
Is Um comoioawealth of England ; willing to
da ill that was good, right, and just, without
■lyvimkctive oaotave to this man, to whcm
be io a atrasiger. But upon this occasion the
r wUTpafdowttey if 1 take notice upon
A. D. 1778.
[118
this occasion, of what is too well known ewn
to be questioned, his general eood character.
And yet I have less need to ask his particular
pardon upon this occasion, because that gentle-
man from whom I received mv instructions,
the attorney in the cause, has nlled my brier
with, I think, not less than thirty of the first
names in this kingdom, who, I am told, are all
attending here, or within a moment's call from
this hall, some of the most respectable charac-
ters in this kingdom, some of the highest rank,
and gentlemen of the first character in this
kingdom, to tell vou that thev have at different
tiihes served under general fifostyn, and that
they do not know in all t^eir acquaintance, a
man of a more cool, dispassionate temper, a mail
of greater character, humanity, and justice,
then general Mostyn ; as celebrated for it tia
any man of any rank or of any degree of ho-
nour in the world ; and yet general Mostyn
must be supposed, in order to justify vindictive
or exemplary damages upou this occasion, must
be supposed to be actuated by motives which
his heart abhors, and which motives nevcfr
actuated his heart a moment in his life. I
leave it upon this idea, that if he has acted im-
properly m every step, yet, upon the idea of
Its being a mistake in general Mostyn, I appre-
hend tM plaintiff has no right to expect exem-
plary damages.
Serj. Burland, I suppose it is a fact ad-
mitted between us, that this is a conquered
island, ceded by the treaty of Utrecht?
Mr. Lee, Minorca was ceded to this crowft
by the 11th article of the treaty of UUrecht.
James Wright^ esq. sworn.
Examined by Serjeant Burland.
Q. You resided some years in Minorca f'-^
A, From about January 177 1, to the middle of
1772.
In what character? — As secretary to the
governor.
To Mr. Mostyn ?— Yes.
You know the division of the island, do you ?
—Yes.
What are the districts they are divided into?
—I believe originally five; but two are blended
together, that there now are but four.
Do you mean to include in one of these dis-
tricts the suburbs of the fort of St. Phillip's f
— ^They never do, when speaking of them ;
that is, extrajudicial of the common officer of
the island.
Under whose particular jurisdiction is that ? —
I always understood it to be under the direc-
tion of the governor.
What do you call that district ?— The arra-
val of St. Phillip's.
Are you sure you understood it to be distincfi
and separate from all the other districts ?—
Yes ; insomuch that I was always led to be-
lieve, and told, that no magistrate of Mahon,
which is the district next adjoining to it, ever
did go there, or could go there, to exercise any
sort of function, without leave had of the go^
i
119]
14 GEOROE Iir.
Ac^oHfir Falte Imprisonment—
[IfO
▼ernor ; and whenever there was oocasioii to
■end an V of them down there, the fort-major
received orders for their admission.
Are these laws varietl at any time, and by
what authority ? — ^The island is governed by
iBpanish laws,* subject to be raried by the go-
Ternor, with regard to all interior matters. A
proclamation of the governor is as binding
there to try a man upon a trespass, as any laws
whatsoever, subject to be varied by the order of
the governor ; not in respect to property, not
with ref^ard to mtum and tuum^ but with regard
to the internal police.
What do you mean by proclamation ?— That
if the governor issues a proclamation, and in-
flicts a penalty for the breach of it all over the
island, and if any person is guilty of the breach
of that proclamation, he is subject to the
penalty of it, and for want of payment is im-
prisoned.
1 suppose you mean they enforce an obedi-
ence to that proclamation by imprisonment ? —
There is there the chief justice criminal, and
Uie chief justice civil : both have their separate
courts. If the governor's proclamation is
broke with any penalty annexed to it of impri-
sonment or fine, the man is seized and brought
into that court : the proclamation it exhibited
a^nst hiia, and by that he if condemned to
cither fine or imprisonment, thougl) that prochi-
nation was made perhaps but the day before.
According as that proclamation afllects, whe-
ther a civil or criminal matter ?— I do not re-
collect any of a civil matter.
Court. W bat are the nature of the proclama-
tions yon are speaking of? — A. In all the me-
morials presented to toe governor, be issued an
order, that no memoriab or petitions, ^except
ibr mercy, should be presented to him without
l><^ng signed by an advocate admitted in the
tonrts.
Q. You mean governor Mostyn issued this ?
—4. yes.
Whether, though the Minorquins by the
treaty of Utrecht are governed by the Spanish
laws, yet whether our government here do in
ifact, or not, from time to time make alterations
mod regulations in those laws? — The king in
ooun'cil, upon all occasions of application to
them, issues out such orders as the case re-
auires, and they are recorded in the royal court
here, and are as binding as any laws what-
•oerer.
They are registered there, are they not ? —
Yes.
What do you call the royal court? — The
court of royal government is the criminal and
the civil court.
You know Mr. Fabrigas f — Perfectly well.
What is he in the islaod f — I was directed
by governor Mostyn, who was very much
tea2ed by his repeated applications, to enquire
what sort of a man he was.
* As to the laws which thoold prevail in a
fiOMuered country, see. the Cite M Ibe isliod
•fGrtMMla,a.p. 1774.
Firat, as to hia (joality in the island ; what
station is be?— His father holds some vioe-
yarda, very amall. He himself I believe ac-
tually, for his bread, labours and din and
prunes the vineyards, and talks and cbatteni
about politics perhaps five days out of six. It
has been repeatedly said, Mr. Fabrigas is a
man of property. I believe he had at that
time no property upon the earth. General
Mostyn ordered me to make enquiry, and that
was the result of it.
We know what the station of general Mostjfi
is ; that he was then and is now lieutenant-
governor of Minort'A ; that he is commander of
a regiment, and a man of family : what is hif
character as a man and as an officer ? Is he a
man of humanity ?— 1 believe as much so as it
is poHsible for a man to have ; that is, in my
opinion. I have seen much of him. I do not
believe there exists in the world a man of ten-
derer feelings, for any ill efiects that may be
produced from liim.
Is that his general character? — I believe
him to be much more so than common. I
think that is his comluct that will be found
upon every enquiry that can be made of him.
And it lias been so under your own know-
ledge ? — I am sure of it : 1 have had many
opportunities of seeing the working of it in a
very surprising manner.
Will you let us know as much as you do
know of this transaction between Mr. rabrigaa *
and the governor? — May I; refer to some
minutes I have here ?
Counsel. Yes.
Serj. Olynn. Did yon take them At the
time? — A. No; but all within three days.
1 hope I ahall be excused \\' I should make any
mistakes in respect to date. Mr. Fabrigae
S resented a memorial, 1 lielieve to myself, to be
elivered to governor Mostyn — that was the
dlst of July 1771— complaiuinir that Mr. Alli-
mundo, the mustastaph, the only officer in ibe
arravaW— 1 think that was the first petitioo,
complaining of some abuses in buyinif wine.
The governor said, What does the fellow want f
He bid me order Allimundo to answer ii, lor be
knew nothing about it. I sent for Allimundo
op to the heHd-quaners. The musiaNtapb ie
the only civil officer of 8t. Phillip's that is, in
the arraval : he is put in by the governor, and
turned out by him at pleasure.
Did you order Allimundo tf> give in an an-
awer to it ?— -I sent for him, and desired him
to come up to me. I gave him the memorial,
and told him it was the governor's order that
be answered it. Upon Allimundo's answer
coming op, it was read to the goiernor.
Coufuel. That answer is dsted the 8ib of
August 1771 ? — A. I read it to the governor*
The governor ordered me to tell Mr. Fabrigae
and Allimundo, bv an interpreter, that he wee
rerv well satisfied with the defence Allimundo
bad made to Fabrigas's charge. I told tbfa
both ao. Fabrigas came again, and desired Ie
see the defimce that AUimundo bad made. I
loM bun I was not aatboiiicd to tbew it binii
«w«HI AwkU«
Fabrigas v, Muttyn-
% m>lter for him to de-
iMfti* He cmhc again llir next day, or tba
fcf •Aer, ^(iog in annther mpmorit), cleiiriug
Itelkal mi|^t be shewn lo the gforemor.
CamiL That vm delivered Ibe 131h of
A^omT — A. Yei: in ihnrt, deaitinr to see
Kr jouificntinD of Allimuodo, and shimnE the
p^a4 of bis compUini, aad, I thiak, Rddiog
«Mfacr antcle.
tarn akeiveri theic two nemorialR to the ga-
•fiMrf— 1 did. GoT«rnor MoMjn ordered
Itu Dr. Mafkadat, «ho then acted as cliief
JMicB ci'i], ^ould rec^Te and Itear any cntn-
fbMa lluit Fabri^RB had to make agiiiusl Alli-
■mA* ; uid he addeil lo bim th« ail*oeaIe tis-
cri. Ike Mcmid officer in llie island Ihat acts
•ate Ike king'* cammission : the chief iuitice
(Kd is lite fint, the chief justice crimiDal is the
sBCMul. the Bdvocite fiscal is the third, next
rfb* thai pxemor ; he gave Ihem authority to
waA tor papers and penons, and whataoeTet
Mfkl Iw iueful in the enquiry in his name.
B* By (Dtmeranduin, I think it nag the SOth
«f AntfOBt, Ihal these tno law trentleioen, aa
rs, met, and ordered Fabrigas and
who were thpn present, to attend
ihtm Ike 93il fallowing. It may be nrcessory
I* akMrrr, iliat ihough these tiva gentlemen
■m IbTD aiilio^ in ihfir own viril cnurts,
■kay aoed as cuiumissioners of enijuiry, be-
owielkc mwi oaa one of ihe arravBl of Hi.
nilkf**. i won't charge my memory by
mtk, kol 1 am *ery sore they had a se|iarate
^■[■■Imiob nn purpose imder the governor's
Wm ibe iiHiuiry made? — On the 93d, Fa-
too* (tertsied h* would proceed nn I'urlher
iStewM allowed to see the defence Ihut Al-
k««ia had made, and given in lo the go-
■ II w.
Where «»■ ihni declaration maile? — In the
aswt batoie ihc cum tuiisi oners. Mr. Fabtigas
fmamiA a ibird incmoriBl lo truvernor Mosiyn,
Mfioc bu hinif more than what be had said
M*r Ik* eiiinroiMioners, ihni he cnuld not
■w.**! uU he had seen AJIiatundo's answer to
brtorr ihe ihiid memorial llial was present-
ai, haJ ihr ciKDinUtioiiers luade any report T
8rr) lUrlmd. Tiiat is the third memorial,
ciMUiauis the \i articles he exhibits against
Q (.'an Tooflilhedaieiolhat'— J. I think
a owfl hrhelween the 33d aad 36tb of August.
r>r«nal SliMlya refirrred him to the commis-
Wbat VM done afterwards 7— The commis-
lannpartad lo the i;overDor, that Mr. Pa-
-.•aa, ky Iba manner of his carrying on ihis
>' ■ ■■tioa apviul Allimundo
» hw waalbeif report r-The a4tbof August,
' >aiafina: here is their re)iort.
L^art. I dan <•; lhi> report he is ipeaking
un
Seij. Davy. I took a great deal of pains lo
collect dales, and I did it from Ihe cuoieots;
I believe they were rigbi, r« J opened it.
Wri/iht. There were two reports, one Ihe
3:slot August, the other ihe 4ih of September,
thai Fabrigss, by the manner of carrying on
ihis charge, intended to mt* dissentinn.
Serj. Duvy. Mr. nrighl. I find, confoan^
Iwo reports togellier: it is the third report
where Ihey report thst it is tn hi'eed sedilion.
Q. Then be presented this third memorial
oonlainioft the 13 articles f
Mr, Just. Gould. My brother Davy staleit,
that it WDS Ihe lOlh of September Ihak thej
took notice of the articles.
Q. Was there another report about the lOlh
of SepleroberF — A. Yes, there is. On Ibe
SGtb of August the governor ordered me to
desire the ctimioal chief justice, and the civil
chief justice, Ibe advocate fiscal, and the
aecretDry to the conrl of Ihe royal govern-
ment, to come to me next mnrniiig, ihal be-
ing the 96th. Fnbrigas came there, task-
ed him in the governor's name, by an inter-
preter, what he meantj whelhera civil prose-
cution to recover damages against Allimundo,
which be had sustained ? or whether he meant
In make an eiamide of him for any abuse be
bad commiltediu hisnfficef These gentlemen
were prearnt.
• What answer diil he make ? — None ; 1 eoutd
get noansivcr from him.
Serj. Davy. That is, upon the arlicles.
Court. Is that subsequent lo the delivery of
Ihe articles F
Serj. Dofy. Yes.
Q. This question arose upon bis presenting
the 13 articles lo ihe governor f — A. Upon ih*
whole uf his cuoduct.
But that was alter he presented the articles f
What did he say to Ihal?— He said nothing.
I desired him lo make some kind of answer,
Ihal 1 might tell Ihe govenior. Hisanswerat
last by eklnrtioD was, that if 1 would give him
a quarter of an hour, be would go and come
back with an answer.
Ileing cnnfuundeil at the question at first, and
giving no answer for some tinie, at length be
said that? — lie did nol know which he wanted
nor what he wanted. He gave no answer at
last, but Doty asked that he micht bate n qoar-
let of nn hour. I told bim that he was not
cniiiined loaquarier of nn hour ; bulil being
theu between lO and 1 1 o'cluck, I behered that
they would be so attentive to him, that he
might call again at t9 o'clock if he pleased.
He came back again wiibin the lime, and gaf*
noiicc that he meant a civil aclion-
Serj. G'ynn. I would not interrupt Ihis CTi-
dence, as it does not spprar to be ul great con-
sequence lo na; but I submit 10 your lurdship,
whether this is properly evidence, Ihe answec
being conieyeil lUrougn aa interiiretci f and
1S3]
U GEORGE IIL
Action Jar Fake Ifaprisonmeni'^
[1S4
whether the ioterpreler ihoold not be produced,
who knows what answers were mea ?
Mr. Lee. We are now to take the answer
from a man that does not know what the ques-
tions were, in a lang^oage the witness does not
understand, and consequently cannot report if
there were any, or what answers gfifen ; where-
as there is a man li? ing in the world who could
report the answers that were gi? en. I should
not object to it, if that ffenthteum could himself
understand the answers that were given.
Mr. Just. Gould, 1 think it is very clearly
tMifficient evidence.
Mr. Peckhom. The interpreter was appoint-
ed by the goyemor, or by bis order, tborefore
we caiuottell whe^er tliat interpreter gave
the fair and true constructions of the conver-
sation which pasted between Mr. Fabrigas and
Mr. Wright; but from the person appuiating
him, we have reason to apprehend ihe contrary.
CaurL First, it is very dear, from what Mr.
Wright says, and I sup|iose nobody will doubt
from the subsequent action, but that this in-
terpreter very fairly and rightly interpreted,
that this roan desired to have a quarter of an
hoar to consider of it : that is clear. He has
two hours given him. He comes back again,
and then the same interpreter officiates. TiMact
wrovea that lie had ezpUuned the first very clear-
ly, because he went away in consequence of it.
Wright, The assesseur criminal talks as good
English as aay gentleman in court, and he,
whenever there was the least mistake or.con-
liiBion of sound or words, set it right instant-
ly. He returned again and said he meant a
civil action.
How long time do you think he was absent f
•—Within two hours, probably an hour, Ihe
assesseurs both of them walked out and came
in agfain. The commissioners not finding Mr.
Fabrigas would attend them, were desired by
Ihe general to send him an answer in writing tu
■ix questions.
W hen was this? — Subsequent to his saying
1m would proceed by civil action.
I suppose then that meeting broke up? —
Yes. The governor consented that he might
have a civil action agamst hioi. 1 repotted
il to the governor.
Did you tell him of that ?— 1 neter saw him
afWrwards, but the judges present heard him
any he meant a civil action. They told him
they would admit it.
m.Feckkam. Did you bear that?— J. Yes,
I did. 1 was to signify to him that Ihe governor
mted lo his having a civil action, if he
■eit.
And was il signified to him ? — Yes, it was.
You say he did not proceed by a civil action,
fed therefore six questions were proposed lo
Mm r — ^The assesseur civil canse to the go-
^^^^^9 and informed him this mau did not pro-
eivil aotiou : then Ihe governor sent
»Mlahira.
iMf i^cr wan it thai they were sent
'~^I oaMOt ifceUeat.
It^L Htti digr r— N» ; it Blithe
three or four days. The ^neral sent for his
own information six questions, relative to Ihe
conduct complained of, of the mustastapb,
for the opinion of the chief justice civil, whe-
ther the mustastapb had or not exceeded his
commission. The questions are in court, and
the answers.
Is there any date to these six questions ? —
The mustastapb of St. Phillip's hearing this
great confusion, in which he was the great
person complained of, spontaneously sent np
an attestation, or rather a desire, of many of
the inbabitaolB of thearraval of St. Phillip's, to
request the continuance of the old regulations,
and that the alterations proposed by Mr. Fabri-
gas might not be made. That was signed hj
a great number of them, and was as mnch
the object of conversalioo there, as any thing
ever was.
Was any order made upon that, or what was
done ?— On Sunday the 8tb of September, Ihe
governor having first aiiked Dr. Oliver's leaver
a very considerable merchant in the town, a
doctor of laws, and the chief justice civil, he
gave them a commission to go the next morn-
ing, the Sunday, to the arraval of St. Phillip's,
to a country-house the governor has Ihere^
that is called Stanhope's Tower, telling them he
would give directions to all the people thatdeaK
in wine, that they should come before them se-
parately to be examined, and give their oni-
nions, and whether they chose the new resolu-
tions, or to adhere to the old rule.
What do you mean by asking Dr. Oliver's
permission? — He was no officer. For them
to say whether they chose the new institution
of general Johnston, or whether they chose ib#
general sale of wine as every body pleased. A
great many of them did appear the next room-
ing ; I suppose all : 1 understood at least all that
clK»se to come.
Whst was done ?— They re|iorted to the go^
vernor, that 93 were for the then practicn^
(that is, general Johnston's institutions) 41
were for the old regulations, sod 6 appeared
to be indifferent, and 4 wanted some alterations
of their own.
Which were the old ones?— They never
were in practice in the arraval of St. Phillip*a ;
but, upon all the enquir}-, they could find Ihat
tlie king's regulation subsisted about six
months, and made great confusion, but that
Ihe regulation of 1752 never obtained at all is
the arraval of St. Phillip's.
When was this reported, and dated P—
The 8th of September ; tbat was on a Sundaj.
What followed? Was this reported to the
governor f — Yes ; but the governor waa wdl
mfbrmed of what had passed, on the Sunday,
Mr. Fabrigas came on the Monday rooming
with a new memorial, complaioing'tliat it was
Sunday; and he protested against what waa
done, and Ihat Dr. Oliver, and the chief
justice civil, had used threats and menacen l»
thnpeoplt.
Then the next memorial I have in my hand
te Dr. Blvhidal, and Dr. OKm^ r— Tb g^
M5J
I^brigoi V. MoHyn.
was to cxecediogly cautioat in erevy
lliior» whether of consequence or not, upon this
BOMeoMca] meoiorial, that be submilled every
Inaftinn to the people of the island. He sent
this report to Dr. Markadal and to Dr. Oliver,
fbr them to answer. They answered it on
tklOth.
What ibUowed the next day after that?—
IiMl it was the same day Fabrigas came for
as soswer, the lOtb, which was Tuesday. He
CHW Ui me to desire an answer to his memo-
lisl about the Sunday aflair. I was not at
haiae. He em|uired then for the grovemor's
ai4*de-camp, and gave him the memorial.
Hare is another of the 10th of September, of
Dr. Piaiicisco Segui, and Dr. Markadal's. —
FiaaeisoD Scgui is the advocate.
That was an opinion of their's, as the law-
j»s ofthe island ? — I fancy that accompanied
tha answer to the articles ; I cannot be positive
tadslci. Retnminff home, 1 met Mr. Antonio
Fahrufas immediately after he had l>een with
the governor's aid-de-camp ; I think the 10th.
1 ralbcr avoiiled having any thing to say to
him: I bad had so much, I was quite satisfied.
Bs ramr to nse. I called Segui, a priest, and
gst John Vedall, who served for an interpreter,
~ who happened to be in the street, almost
the governor's wall. I desired Mr. Pa-
in the most civil manner I couki, hav-
MOaae no fifty times before, to say what he
«iihed or wanted. If he would only point out
iihat be wtabed, it ahould be done : I would
viotake to answer, the governor meant to do
iij thin^ that he wanted ; but that he had
in such a manner hitherhi, that nobody
how to please him. Mr. Vedall, who
natter, as every body in the island
with me in desiring him to go home
his family affairs. All his answer to
■e was, ooflsplaining of the enquiry being on a
fiasdrf . I told him that it could not be altered.
JidM vedall joined with me in desiring him to
gs heoae, and not bring mischief upon himself.
Ma Vedall lold me, ne said he would come
the next day with one hundred and fifty
1 think it was under bis interpreta-
thengh I had the priest there some part
afthetiaaa.
Q. Jrvm <Ad Jury. Was it armed men.^—
i. Bio, DO.
What did he say ?-- -He would come with
mt hoodred and fifty men to back the petition,
w whatever the word was, with a petition and
•ae hondred and fif\y men, or with a petition
kaeked hy one hundred and fifty men.
Q. yVoei the Jury, What do yon apprehend
he aaeant by that expression ? — A, Upon my
aavd I catehed at the expression, and desired
John Vedall to desire him to desist from such
aa idea ; which John Vedall did, and treated it
as Isaghiog : but if I understood any thing by
ii« it waa not to como with guas, for they had
aa such thing, but to come as a mob.
Q. from the Jury. Did .he speak Spanish or
Eaghsh at the time?— J. Miaorquin.
What was tht •Char iotarpretar's nama?—
A. D. 1775. [188
Segni, a priest, one of the Spanish priests : bw
was there the first part of the time, and Jobs
Vedall the hitter part.
Court, And then in consequence of that, yon
thought he meant a mob ? — A. Yes ; or I should
not have got John Vedall to enter into a k>ng
conversation to desire him to desist
Q. What did he say upon that?— il. H«
went on, J believe, repeating the same again.
1 believe the conversation was closed upon that.
Q. from the Jury, Has Allimuado, by virtua-
of his office of mustastaph, any particular li-
mited quantity of wine to sell P
Serjeant Dairy. When the papers are read,
that will be particularly spoken to.
Q. You informed the governor of what wav
said about 150 men?-»il. Yes.
Whatpaased after that?— I think on Wed»>
nesday, the governor sent his compliments t^
most ofthe officers of tlie corpa^ desiring thi^
would come to him the next morning, to ae*^
the honour that was to be done to him.
Did they meet there?— There were most of
them there. Every one, 1 believe, expected
a full meeting of the inhabitanta of St. PhiU
lip's.
What meeting was that that waa expected T
--Those people Fabrigaa had spoke of. They
waited aome time, and at last four people came,
(I think all four were shoe- makers) and they
brought a memorial. I believe a gentleman ia
in court that received it from their hands. He
took the memorial of them, read it, and I thinle
colonel Mackellar, afler reading it, told them
that they were to go about their business, to
go home peaceably, and liebave themselves aa
good subjects to his majesty ought to do. I
think there waa a conversation preceding, to
shew they did not know the contents of that
memorial they were delivering, which I be-
lieve will, by-and-by, come out. The general
asked the opinion of the general officers, as
well as I recollect, whether they all knew that
this waa founded by Fabrigas's proceeding?
and the next day he asked them wha:t they un-
derstood by it? They said they understood that
the man was to be ranished the islamii
You were not there when they ^pire their
opinions, I believe ?•*-! cannot tell.
And so, in consequence of it, he was ba-
nished the island ?-^The general ordcsred him,
in consequence of that, to be taken up that
night. He could not be found. The general-
sent to the chief justice civil, and tlie chief
justice criminal, and the advocate fiscal, to
Icnow what he should do in that case ; tliat he
thought him not safe to be left at larg^ in tha^
island. They told him— -
Q. from mt, Serjeant Glynn, Were ycai pre-*
sent, or do you speak from information ?•— il. I
am speaking of what they told me: il waa'
sent by the governor to ask their opinion. This
is their answer.
Q. What were you to ask of themf— i(. Tha
governor's power upon this oocasion* l?lirf'
said, the govemor'a power extended over th^*
man, and ha might do* with him whal*lM«
127]
14 GEORGE IIL
AMcmJot FaUe Impruonment-^
[128.
pleased ; and if he chose to banish him, thej
would answer for it with their ears.
These f^tlemen are themselves Minor-
quins?— Yes; and hoth talk very good Eng-
lish.
Cowt. This answer you carried back tothp ge-
neral f'—A. Yes ; and they told it him viva voce.
The chief justice ciril, upon my having many
doubts about it myself, and saying that it was
not quite the idea of Englishmen, and that we
had not any such law in England, said it over
and over again. He gave me a piece of paper
with his own hand, which he called a quota-
tion from the law of that land, a royal order in
the year 1500 and something else ; a positive
order from the then kin^ of Spain, wherein the
king says, that the opinion uf the assesseur
criminal is consultative only ; that the governor
may be guided or not by it, as he pleased ; but
not so in civil cases. Although the governor
tt absolute in regard to the politics and oecono-
tnical government of the island, it is not im-
proper, but very prudent to take the advice of
the assesseur criminal, as has been recom-
mended by the kin? of Spain to the governor ;
although it must be observed, that in these
cases uie assesseur only git^es his advice, and
consequently it is in the governor whether he
will follow it or not, and is not decisive, as in
civil cases. This man being a Minorquin, the
governor wanted to know bow he ahould ap-
prehend him, no officer of his knowing him.
The assesseur criminal said, that the officer
that attended- him as tipstaff was an old fellow.
Says the other, ** You shall have.mine, who ia
A young able man :" and he was apprehended
by the tipstaff who walks before the assesMur
civil every day of his life when he goes in or
out of court.
How lon^ was he kept in prison?-— 1 do not
know ; the books will shew it.
Was he put in the common and usual prison ?
-—There is no other prison in the arraval of St.
Phillip's, but where ne was put, I believe.
Why do they call it N"" 1 ?— I do not know.
Court* It has been particularly described to
me and to the jury as the prison where capital
offenders are confined, and is called N^ 1 : why
is it called N** 1, if there is not some other pri-
son ? — A, There are gentlemen better informed
of the castle of St. Phillip's than T am. I be-
Here there is no other prison. That may be
M^ 1 room in the prison.
Cross-examined by Seij. Glifnn.
I think you told us your residence in Mi-
norca was about a year and a half: who was
ffovernor during the time of your residence ?—
Upon our arrival there, the lieutenant-governor
commanded ; and upon our arrival the com-
mand devolved upon general Mostyn.
Then the command immediately devolved
upon him ? — Within two days, or so.
And the other two days Mr. Johnston, as his
liealBpant, commanded ? — 1 believe the general
cune there on Monday, and took the command
Ml Thiuiday. Beporti iind« general John«
aton*s siirnsture that the governor was arrived -
made it necessary.
Tlien your experience of the laws of Mi-
norca has been cullectHl in that residence?—
That is all 1 know uf them in the world.
Which lias been during the government of
governor Mostyn or his lieutenant. Now you
told us, that the proclamation of the governor,
with regard to tbe criminal court, was the'
same as a law ; and you distioifuish the court
of property, which regards meum and tuuMf '
from it? — Quite.
Do you mean that, without any limitation
whatsoever? Suppose the governor intended to
inflict a capital punishment upon any offender,
most that law be obeyed by the judges ?— I
should imagine it would, it is only my ima-
gination, observe.
I think you were so kind before as to tiill ns,
that thougn that proclamation came out but the
morning before, it would be equally obligatory
upon the courts of justice?— I understand ao.
Now this roustastaph, Allimnndo, sells wine,
does be not? — He makes wine of his own
vineyards, and buvs grapes of other people t»
make wine, and aells it in the arraval. He doeg
not sell it retaiL
That was a regulatM>n of goremor John*
ston's?— I believe so.
I would ask you, whether AUimundo bad
not a lot himself to sell his wine, and exdode
every other person ? — I think, aa the papera
are upon the table, they will sp^ for them*
selves. I think Allimnndo for bis own vindi-
cation urges
But I aak you, of yonr own knowledge,
whether the lot did not fall upon him .'—I be*
lieve he did not draw any lot at all ; it is not
the cuatom for the mustastaph to draw lots.
You think he did not draw lots ?— No.
You did not understand the Minorquin Inn*
gnage?— No.
It is a mixture of Italian and Spanish ?— Yes,
I believe so, and a kind of bad Spanish.
You have told us of the two interpreters : I
think you don't recollect exactly the worda the
laat interpreter said? You thinly father Segni
was gone before Fabrigas said, «« I will oome
with a petition with 150 men, or badced bj
150 men ?*' — I cannot be sure ; I think it waa
Vedall ; and the more so, from his joining with
me in endeavouring to persuade bun from hie
intention.
1 think you communicated this matter to th«
governor ? — Yes.
Did you carry Vedall with you ? — No.
Did you make any enquiry afWr the 150
people?— No.
You yourself were the person that reported
the conversation to theffovernor? — Yea.
What time did you write this paper?— 1
fancy the memorandums of that paper wera
wrote, I ahonki think, 1 could not swear to it
ao particulariy, I should think, within an hour
of every one of these transactions happening*
Then I take it for grantml, that this ia a
Mtkfol espy of a fiuthfiu coUcGlioD, Mceniinc
W]
Fabrigas v. Mostyn.
A. D. 177S.
[ISO
li your iMDMiry, within an hoar aod half after
neh tnwMction f — It waa not pat dowQ for
theMblae eye, but to refresh my own mind.
Tiio yoa did nol put down any thin^f which
^4id not believe to be true?— No, I tfaoold
Mt4cam of inch a tbing^.
Jiaw long after did yoo communicate to the
pMOi what Fabrif^ had aaid? — I never
wi laager between communicating to Fabrigas
wkat the nfovernor said, aod to the governor
vbat Fabrigas aaid, than going from this wall
li that ; uokaa the governor was not arrived
kibe morning, and I waited bis return.
Tkn you coold make no mistake of what
Fabrigas bad said. You communicated to the
pi u sot what yon put down : vou are sure
jm are wider no mistake on tbalheadf— I
bsw 1 iniKht mistake.
Bat I ilo not ask you about any mis-spelling
m ■Msdat^s, but the effect of the conversation ?
•-Ufoo my soul, I believe so.
Snj. Giynn. Then, Sir, I will read it.—
" The same day Mr. Fabrigas came for an an-
iwv to bis petition, and told the governor's
■Mtlsiy bo aboold come the nest day with a
palilioa of people concerned m grapes and
«Ma. whicb they wiU sign and come with
AssbmIvco, to the number of 150."
Hog. Gfyun. I desire it may be read ; but I
Wii*t aafc Mr. Wright any more qdestions.—
(kia mad bv the Ameiate.)
Mr. Petikmm. Pray read the nest pava*
<«On Wednesday the 11th the
r, having the field offioera in and near
with him, received a memorial from
^gmtd' by persons of St
^'s, deMriugthe old praetice might be
i: lo which he answered, that tM four
ikould return home, and behave them-
es lenod and peaosable subjects to his
ttupsly ought to do."
Mr. Lee. Your lordship will give me leave
liash npoB this paragraph a question of Mr.
Wi^gbt. You say tl^re were four men came
oib a Biemorial signed by persons of
ftillip'a, desiring the oki praetice might be
]: did you see that memorial ? — A. 1
OsB yoa take upon yoo to affirm by what
~ er it was signed?—! shall apeak merely
■aaaory, for ihey were all scratches : 1
iiaot believe there were ten names legible to it.
What number of signatures were there upon
te poper ?— I have already said 1 really and
ipoo my word do not know.
Were there nearer 150 or 100 ? — It is mere-
ly a matter of memory ; there were from 41
li 4r, I believe.
Now can you take upon you to affirm, that
Ikffie were not more peopje signed this me-
■Bfial than had signed the memorial for the
aev ioslitoiion P
Csarl. 1 understand it is in the report.
Then h a report of the assesseur civil and
Or. Otivcr, that 99 were for governor John-
Ma'a institolisD, and 41 for the okl reguht-
%ouxx.
tuHi ; 6 appeared to be indifferent, and 4 want-
ed some alterations of their own.
Q> There were 90 odd for the new institU'*
tion?— il. My memorandum says so.
Can you tell me whether there were or wera
not imon this memorial which was brought by
the four men, the signatures or requests of
more or less than that number for the oM in*
stitution?— I have already said ten times, that
I cannot take upon me to ascertain ihe nnmbof
of signatures upon this last memorial ; but I
do know Allimundo proved many of them to
be false.
You know that is not an answer to my ques*
tion. I did not ask yau what were the number
of men that signed this rDemorial : I don't meaa
you abould answer with that precision, whether
46, 50, or 1 JM) : but my question is, whether
you can take upon you to affirm atthia distanoa
of time, that the memorial whiah waa brought
by four men was signed b;^ more or less thaa
90 ? — I can aay no more : if I knew, I would
tell you. I looked at the memorial, it was foU
of crosses; and what makes me think it waa
between forty and fifty was, beoaiise I connt*
ed it.
Then you did count itP— -I did begin im
count it.
Did you proceed to count them through ?•*-■
What signifies answering that ?
Because I expect an answer. What signi^
fies counting numbers, and not going through
it?— I wish your head was capaUe of retaining
every little circumstance of no conaequencew
Court. The gentleman meana, whether yoa
have now snob a certain recollection of the
number of signatures upon that paper aa to say,
whether there were more or less than 90 P-^
A. I don't recollect any thing but one ; that is^
that I began counting; any other circum*
stances that shall lead me to the number, who*
ther I left off at 40 or what.
We understand that a considerable majoritj
signed this very memorial — we want to Know
that fact? — Every attention was employed,
every argument UMd, and every posnible meana
was taken, for finding out the true sense of tha
inhabitants; and amidst the various methtNia
taken, there did not appear, wlien enquired
into fairly and honestly, to be one in ten of all
the names that were presented to the general
in support of Fabrigas's complaint. Mr. Alli-
mundo was supposed to be a man that would
produce the truth. The fort-mi\|or was seat to
examine with him.
Mr. Lte. The seijeant will tell yon, that ia
no evidence at all. Let me ask you, when this
particular paper was copied that 1 have in my
band ? — A, As soon as 1 was at leisure to A
it myself.
\V hen was this particular paper copied ? — I
have said balf*a-dozeu times, as soon as I had
time to put all the bits of paper together; in«
stantly.
Was this paper copied from a memorial in
which this number is stated blank as it is here,
or have yoa that original nemorial by youT
K
131]
14 GEORGE m.
Action/or Fake Imprutmment^^
[ISS
In whose powession was that memorial f— Not
in mine.
To whom was it gi? en P— I think to colonel
Mackellar.
He was an officer of the g^remor's? — Com-
mander in chief o£ the corps of engineers.
So he had the possession of that memorial,
the contents of which you have stated by blank
persons ? — All I can recollect of that particular
memorial that yoa ipeak to is this, that four
people brought it; it is a hard thing to be
pinned down to such a thing as that. The
mustastaph himself was present. I think col.
Mackellar was talking of this memorial: I
think I had it out of his hand, and was going
to read it, and connt it. I beliere he or Alli-
mundo took it ; and I beliere Ailimundo took it
home to confute many of the names, which he
did afterwards.
And that you conceif e to be the reason whj
you did not get through them, why you did
not proceed to tell the number ? — I should be-
lieve so, upon my word and honour.
You do still take upou you to affirm that
there was nothing like the number in this, that
there were for the other regulation? — I did not
Attempt to sa^ such a thing.
Upon the inspection you then had, you can-
not take upon you to affirm that f— I have told
ou all 1 know of it: I fancy there was much
you
Jess
Serj. Burland, You were asked about the
lieut. guf emor being general Mostyn's lieut.
governor ; I believe Uie governor does not ap-
point his own lieut. governor? — A» No.
I believe those regulations made by general
Johnston were some years before general Mos-
tyu was governor? — ^The date willshew it.
I suppose about 1759 ? — O no ; since that.
f meant 1768 ? — I believe prior to the exe-
cotioo of the office of mustastaph by Mr. Aili-
mundo.
Prior to the time Mr. Mostyn was made go-
vernor ? — ^Yes.
You were asked a good deal about that me-
morial that bad these crosses upon it : you said
Ailimundo took it away with him in order to
confute- I know he had it ; 1 don't know
whether he took it away.
Had the governor any reason to apprehend
that those names at the bottom of that memo-
rial were not put there by the persons ?-» Yes,
he had reason to believe it.
Did he enquire into it ? — Yes.
What was the result of his enquiry ? — The
report made to him was, that a certain number
of their names were absolutely forged ; that
the hands of others were obtained under a sup-
position that the memorial related to oil.
Court, You said just now, that upon a strict
enquiry there did not appear above one in ten ;
did you yourself make enquiry of what was the
general sense of the inhabitants?— il. To every
body, and with every body that could possibly
give me information; and from the general
conversatioD I had, it did not appear to me thai
there waa^ I might say one in twaoly that erer
wished it ; and it wonid be worth your lord-'
ship's attentkin to see what these regulationf
are.
Court. Then by the generars direction yon
made the strictest enquiry you possibly could;
to see what the sense of the people might be.
and did not find above one in ten that wished
for this alteration that Fabrigas desired? — A. I^
according to my own opinion, give a great al-
lowance when I say that.
Did you inform the governor of this ? — ^When
I use the word report, I don't mean an idl«
story picked up from one or other, but a mili-
tary term, an answer to the enquiries made by
the governor.
Then the intelligence you conveyed to th«
general was, that the opinion of by far th*
greater majority was against this Fabrigaa's
desire? — All almost: I save my oath by lay-
ing almost, but there was almost all.
John Fleydel sworn.
Examined by Seij. Walker.
Q. Yoo were aid-de-camp to general Mottyq,
I believe ?— il. Yes.
Upon the 9th of September 177 1« give Ui
account of what you know of this afiair when^
Fabrigas came to the governor's? — He asked
me to see the governor in the morning. I
told him he could not then see the go-
vernor, but I was aid-decamp to the go-
vernor, and any ftvour or any thing he bad
for the governor I was ready to receive.
Afler a litde hesitation be gave me a paper, a
memorial : he desired at the same time I woidd
inform the governor that he should come the
next day for an answer; he said he ahouki
come accompanied by 300 or S50 of the inha^
bitantsofStPhiUip's.
Two hundred or 250?— 1 don't ezactlj ro-
member the words.
Was that all the conrersation you had with
him? — Yes. I immediately acquainted the
governor with this message: 1 read the me-
morial to the governor immediately, and in-
formed the gotemor of what he had said te
me. I think it was that day the governor seel
to the field-officers of the garrison and to the
commanding officers of the corps, to meet at
his house the next day, in order that they
might be witnesses of the manner in which he
should receive this Fabrigas and the |ieople be
mentioned to come along with him. Onlj
four men came the next day, and brought e
memorial.
Were any of the commanding officers there f
—Yes $ I think all the commanding offioere
were there when these men came.
What were the sense of the commanding
officers? — I think the sense of the commanC
ing officers was, that, in abort, this man should
be taken up.
Why would they take him up ? — As a troa«
blesome, seditious, and dangerous person in the
island. The governor mentioned to me, that
he had eonanlted the chief Mioorquin judges off
159)
Fahrigat «• MoHjfn*
A. D. 177S.
[184
Ike idiBd. I know he bad coDsolted them,
wfcieb eorroborated the opinion of the field-
ifiofln tbttt were there attending.
Who 18 this Mr. Fabrigas ? — An inhabitant
if %m am?al of 8t. Phillip's.
Of that district that does not belong to the
far where there are jurats f— Yes, and is close
Iftht glacis of the fort
What, has he there anj property P— Hw
Hhcr is alire ; he takes care of his father's
fiaeyards, I belieTe. That is all the property
That is, the liberty of working in his father's
lismnl ? — 1 believe so.
What sort of a character does he bear there?
—He is generally supposed to be a seditious,
IvkdeBt man ; that is the general character
•f the nan. General Mostyn is very far from
bng a tyrannical, overhearing man. I had
Mre opportunity of knowing him ; I served
■wnwKately under him the greatest part of the
hit war.
A man of temper and humanity P— Tes,
toy much so.
Cross-examined by Mr. Lee*
0- Yoo were aid-de-camp to general Mos*
^f— X Yes.
Do 3roa remember Fabrigas declaring that
Kit ay he would come accompanied with
fiOscn?— Yes.
Do yoa know whether there had not been a
itfof^ anaongst the inhabitants, and upon
ihdi aide there was a majority, whether for
is new or old regulationsP-^l cannot tell.
What were these S50 men to come for P — I
lagined it was to give weight to the petition.
Ut yoo eonceif e that the object of Mr. Fa-
knswas to bring 200 or 250 men that were
if Mspinion to give weight to his request?—
fly learned friend tboupfbt he meant to at-
tek the gmrnsoo of St. Pbinip's. You did not
iwiibeud he meant to take the garrison of St.
Kffip'e, that stood out against the whole force
tf France for a considerable time, and, by the
|m might bare stood out a great while longer ?
Tie Aa not understand that be was to come
Hike bead of these armed peasants P— Not of
C0mrt. You apprehend he was to bring these
aaaale lo shew there were so many |)eople to
bcK kia petition? — A, No; I apprehend he
a nioh that would breed confusion in the
Whether you understood that he meant to
ig tbese 200 people to occasion and raise a
iialt, or whether he meant to bring so many
rple Co shew they fa? oured his petition P —
oaany people together in a garrison would
hned eoofusion.
Cmtri. What did you understand? — A, I
imOy thought be meant to g^f e weight to his
HmI yen heard at the time that Fabrigas
ipske m bringioj; 200 or 250 of his friends —
M joo board Of aj»y dispute, whether there
were more of one opinion, or more of the other ;
or had it been asserted that the people in ge-
neral of the arraral of St. Phillip's were con-
senting to the new regulations ? — I think the
people in general wish«l to bare the old regu-
lation contmued ; I took it in that light.
What do vou mean by the old custom ? the
custom Fabrigas contended for, under the
order of council in 1752 P — Yes.
I dare say the Serjeant will not acknowledge
that you mean that
Serj. Davy. No more he does.
Court. Do you mean by the oM custom,
that which was aettled by governor Johnston f
-—A. I do ; it was some years before general
Mostyn came to the island.
Court, Or do you mean a custom that was
before the order of 1752 ? — A. 1 do not.
Mr. Lee, Then am I to understand you, that
you think the majority of people were a^nst
the opinion of Mr. Fabrigas P — A, That is my
opinion.
Do you recollect that having been alledged
to governor Mostyn as the general opinion P—
Yes.
Do vou recollect that having been alledged
to Fabrigas, that the popular opinion was
against him ? — I don't exactly reeolWot.
Don't you recollect that the very end he
had in view, and professed to have in view, in
bringing a number of his friends and a num-
ber of people concerned in vineyards to present
this memorial, was for the purpose of convinc-
ing the general that a majority of people were
with him, and not against himP — I suppose he
must mean so.
Did not you understand him so at that time,
when he talked of bringing a memorial, and
coming accompanied by 200 or 250 men ? Did
not you understand him to mean that such a
number of people that were concerned in the
wine trade ana in the produce of vineyards
would come and signify that to be their inten-
tion P— Certainly he meant so.
Were you present when the four men, not
the 200 or 250, came with the memorial sigu-
ed by others P— I was.
Was that memorial ever in your hands P — I
don't remember ever having it in my hands. I
saw it in colonel Mackellar's hand, the chief
engineer, when he questioned them about it ;
and these very people seemed shocked when
he explained to them the tenor of the memorial.
It was wrote in English, and they seemed not
to understand the import of it.
Tliey were Minorquins?*-- Yes.
Can you tell me what number of signatures
were in that memorial? — 1 cannot guess at it:
I should think much about 50 or 60, but can-
not guess.
You did not count them at all ? — No.
Robert Hudson swnrn.
Examined by Mr. Buller.
You were, 1 belisvs, fort- adjutant at this
time?— Yes.
1S5J
14 GEORGE m.
Action Jbr Fake Jmpritonment'—
[138
Was any applicttioD made to yoa by the
ciril maKittratet ? — Yea; the mustaataph of
Sc. Phillip'v came to me oo the lOib or lltb of
8epteml)ir, aad told me, upon readiaj; aome
oniera of general Mogtyn, ibat Fabrigaa aaid
he would come with a mob, and aaid tbey were
Bull and Yoidy and tbey would aee better days
to* morrow.
Air. Peckham, You need not mention what
the mustaataph told you ; that is not regular.
Cimn)>eifor Defendant. That ia the regular
metbo<l there.
Mr. Peckham, It may be regular there, but
it is f ery irregular here, and cannot be admitted
aa e? idence*
Mr. Just. Gould. I ahould be glad to know
bow the go? ernor can he apprised of any dan-
^r, unless it is by ane or other of his officers
wfbrmiiig him there is likely to be such and
auch a thing happen ? I suppose he gires the
go? ernor an account of what he has heard, then
thegoTeruor makea an enquiry into the matter.
Mr. Peckham, Hearsay is no eridence.
Besides, the mustutaph ia an interested and a
prejudiced person ; at least he appeara ao
throuifbout the different parte of this cause.
Now can what he baa said in Minorca to this
witness be admitted as evidence here? The
nustaataph is liring; why don't they produce
him ? If they had brought him here, we should
have his e? idence on oath, and could croaa-eza-
mine him to the facta.
Cauri. We do not take it for granted that it
ia really ao ; only that this gentleman, bearing
of this, tell« the gofernor.
Mr. Lee, It is no OTidence of the fact: if
you mean it only aa a report, we do not object
to it. — A. The mustaataph toM me, that upon
ffif ing out some orders to the inbabitanta of 8t.
Phillip's, some orders relative to the aelling
wine in St. Phillip's, he came with a mob, and
aaid, >« It is nuH and void, and we will see
better things to-morrow." He further said,
Ibat if there were not some immediate measures
taken with this Fabrigas, he was afraid of the
€onsf>quenoe, the rising of the people.
This was enough, f should think, to give an
alarm. Did you acquaint the governor of it ?—
Yes, 1 did.
What was done after that ? Did the gover-
nor call you together?— I was not pnvy to
what the giif ernor did in cooaequence of this;
iny pott was two miles off.
Omrl. Gentlemen of the jury, then all this
comes to nothing ; be pruves no Vact^-
8*0 .-^^"vy. No: this is to introiioce the
Bcxt e« idence, of the goTemor summoning tlie
•fficera together.
You knew this Fabrigas ; what wu his be>
havioiir iu the island .*— fikiremely troublesome,
wmya repreainted to me : there never was anv
•Igecliuu m governor Johnaton'a regulation tdl
hy thia nan. Governor Jobnstoa did this, be-
Ihe wint ttaed loiaraaoar, by every body
•■•wadtoacU wiMataiinM: theydi^
in order that no more might be opened at %
time than could be aold before it waa sour.
Cotir^ I chose to bear the reaaon and ftnui-
dation of the reguktion.
Q. What is the consequence of that aoaouf
the soldiers P—il. Diaovdera of diifer«nt kintK
fluxes and tbe like.
Court. There bdng no celbura, I anppon
they could only buy from hand to mouth.-*il.
In general they are open aheda; tbey nra
hardly better than abeda.
a Did that produce any disagreemenii
among the aellera tbemaelvea, that tl^ under*
aold ^ich other ? — A. Some poor people, that
bad but little wine, were almoat atarved: the
aeveral yeara after governor Johnaloo made this
regulation, there never was known to be neaali
aour.
Court. I waa rather apprehenaive that thin
might enhance the price. — A. Tbe price was
never raiaed upon that account.
Mr. BuUer. There waa an afforationjpric*.
Mr. Lee. Yea ; but thia waa a libarty of
aellin^ b«low it— il. The town of fit. Philiip*a
was divided into four diviaiona, and four peopin
uacd to sell at a time.
Colonel Patrick Mackellar swon.
Examined by Seijeant Daigf.
Were you at the garriaon in
1771?— Yes.
Did ywi know Mr. Fabrigaa belbre the tune
of his being apprehended P—-1 have known him
by character a great white ; they called him
RedToney.
Yoa happened to aay yon knew him by chn*
racter ; what wu the cnaracler be bore P— A
very bad one ever since I have been in lh«
iatand, and for aome time before.
Of what sort? — He was sedituNis, troohin-
aome; a drinking, gambling fellow; aat upoC
nigbta with low-life people ; and lie kapl
women.
In short, he is a man of an ordinary chnrao-
ter ? — Yes.
But the character that I wanted <^iiAy In
be informed about waa, concerning hia obedi-
ence to government, whether he is a turbulent
man ? — I hai-e had many coniplainta of him
from two musta^taphs, when I have been com-
manding officer of tlie garrison.
How long have you been there? — I waa onn
of tbe first that went there when the lalaad
was restored after the la«t war, and had beaa
there a good many \ears before. I went Arat
in 1736, and left it in 1750. I ment in May
1763, and remained then: till May laat.
Tlien you must be prHi> well acquaintoi
with tbe laws, and gotemmeot, and constiiutimi
nf ibis country ?— I have a good dealof knofP«
ledge of it, as much as a uiiliury asan eaa
have : we cannot aiudy these things aa lawy en
do.
Pray is there not a district tbey call by Uw
name of the arraval of Sl PhilMp^i f— Yea.
Mowfiff bthatr^tii mdmd bj ~
yahrigas v. Mottyn.
4BB ridi, and mrToimdcd bj water oa
tbe fort 7— WitliiD a musket-
!t withio tbislbeUcalleil Ihear-
Hftal ilo YOD meBD by (tie wati, rnyalty?—
hi wImtc Hie ^vernor bas ■ greater power
tmrnuj where Vise; nliere lleJud|resot'lbe
tteloMHWIinterpow their aulhurily or power,
kHby lii« ifCrmiwioD ; ami people ol*ihe arra-
•ri h«*B pcrticular pn>il^ge« da that account.
IWMfei nnoot conTflie any person W ap-
CWVK (bem, but by ihe j,'nTernur'B appro-
B, wUbuttliearraval,
li « MM tw in the other parts of the iiland 7
Yon bare, I beliete, in the other parts of the
Und, officer* called jurati ?— Ye«.
I> Ibere aoy aiwh in the arravat 7— Ko ; tbe
■Mluupli iithe ddIj ma^iatrate there.
IVn tliere tt an officer irithio thia royally,
vilbin tbia ftrraval, calieil a iDugiuiuph, who
k tbe ovly nauHlraie there?— Yea.
In KAhit parta nl' the islaad there ere other
^QsiiBtea of iliffercnl namea, jurala aod so
fcnb?— Y*i.
WbMD ia tbe miiataslnph oflhe arraval ofSt.
niilIifi'*appoiote<lby?--Thef;aTerDar; orcom-
MaaritT it) chief, when there is no goTeruor.
DaM tir dnplaeehim at his pleasure? — Yes,
Wbu la lite office of muilBBlaph ? — He lakes
WB of liie Heights and meaeurea of loarheta ;
M» ■•■ ai-counl of all (be wine that is made,
—Alt ilierNpMidilureot'lhe wiae-, andielllea
laj IHib itianutea among the inhabitants, in
*Mib«y oil the flrst instance,
WW, ia that wirii rrgaril to tbe alforalion,
*W»mtt o( the prii-e of tbe wine N--Thal is
4Mljr idr tnaKistrates at Mahou. The ma-
fiHMsa 'if Mahoo, as they ilo every where
•b, «i a price upon tbe "ioe, wtiich they call
■ iCvalioii or marbet price, aixl the artaral nf
k Pt.Uh|t*a t« always ruleil hy rhe a(fi>ration at
Mil— ; the niiipalrates at Halion do nnt put
ie iipoo ii, but it is always adopted.
'■•Toffifvrihat in point 111 fiirmsellte*
n |irice(--There are different prices
'Jhrrpi iwttnitKM, biil ibal in t£'i>erned tiy
- imcFUuiialiseilaiMahnn. Mu boo is the
-iff^ikMHctlotit, Phlllifi's.
tk lio ■■ the prfsMi ibsl in point of form does
iiofK ttr_Tbp niuMaaUph is the nffiier
'1 dora, aoJbcnuly wgnifipawhgilthepriteis.
!t* ts tb* iranipet, the niouib by which they
.'.dnaaDtl ■hu IB the afToratioo price, he
bria( rr«blrd ami i[nvenied by the aOura-
M> al MabdD F— Yea ; the price that is paid at
>*0B b always paid st 8t. Phillip's.
What ia Ibe micral law f Are ibe WmOT'
y^ Hosenie'l bt tbr English or tilpaniah law,
arabal aiirt 7 — Yhry always plead the Hjianish
ll*«,Mil wataelllilhy Ihe irraty of Utrecht;
ht vb^n ibn Kiigli<h liwR are conrenient fur
(^•v, iWy pUad Uiem.
^ thai wfakli ia ctmtenient they will picail,
-■^ * -tar— Yet.
iW-iwiip
iVbi-iaUi
A.D. 1773. [158
Bnt which is the law that moal preTBJUF_
TheHttauisb law. When the island tvae given
op, I btiliete DOthioK hi all was seitleil with r«.
lution to them, and Iherefure we were sup-
poseil to receire thrni upon the same Inuting
that Ihe French bad them ; but siace that tune
they made interest at home in restore lu ibem
Ihe same lawa and privileges lliat Imik placa
helbre Ibe island whs taken, that ia, Ihe Spa-
nish laws.
Were you there when Ibe place was lakeo br-
ibe French f—No; I was in America.
Piay what is the temper of the MinorquinabB
general f Areihey welleiTected to the Eaghah
govtrnmenl ? — Same aie very well, t believe;
others are not ao.
Pray do yon remember the occasion F wera
you one of those that were invited lu meet ^a-
vemar Itlotilyo, wiib the other gentlemen, DpOB
Ibe occasion of being coiisuitinl about Mr. Fa-
brigas ? — I was, once or twice.
Had yon been arqnainled thai it was a mat-
ter of public uot'iriely of what had bappeneil
with regard to Pobrigai f — 1 have been at the
presenting several memnriaU to Ibe governor.
Did you hear of tbe report ol' what had pre-
vailed, the general talk of ihe place? — Yea.
What was tbe universal opinion, if there wu
but one ? or if there were vBrions opioiDiia,
ivbal was the opininu ol you and Ihe rest of the
genilemen thai were called in? — The opioion
of the other gentlemen as well us my «wii
was, that he was a tery dangerous and trou-
blesome man. fly his li>rii>er history, au^
Irom antne anecdutes of those times, it waa
IhuUElht a very uii<iBle thing to let him be at
liberty ; that ii would he a righl thing to lake
him Up, and bring him l<i puniHbuienl, lest be,
wbii was a man very likely to be prarlised
upon, would luke other measures productive of
mitchief.
What was agreed npnn ? — It was in loose
converKatJon thought bisl that be should be
banish 1^,
According to the practice of former timet, do
you rememher a pruciice of Ibiit kind having
been done ?— I have tirnnl of several ; whea
Ihe Eniflish were in p-mi-ssinn <•( Ibe island, aa
well ar when theSpinisrda were.
Mr. Lit. Thix M uniting a prescriplioD.—
A I tell ynu wbal 1 lisie hrmd
Srrj. Glyna li io impossible that it can be
adniiltrd: if be had kuuwn an iustaace, ba
miff hi hate men tinned ii.
C'i'urf. 1 1 ia nnt question, whether, according
Io tlie eiigcucc nl ilie cose, the general might
ioHict Ihii hamslimcni ? and another thiag,
whether it la Ihe urdaioed law eslalilishrd id
t Itch a case to be applied to such brhntiuur?
Now, if you go inlu a usage ul' that kind, yan
must prove particular facti, uoi produce ihit
nieman to say he has heard such things : it
not Ibllow from hence that this luigbt ba
Ibe proper puniabment.
8erj. Dam/. You have known general Mot-
tyn, i believe,a great while? — A, Oolyslnce
he becuiM goternor of Ihe ialaad.
1S9]
U GEORGE III. Actum for False Imprisonment^
[140
T wigb to know of yoa, what is hit character
and beha? iour ? — I aUrays beard a character of
him aa a ffood officer, a polite, well-bred mao,
that earned bis commaud in the genteelest
manner.
Is be a man of bumanitjr, or rather ferocity ?
—I always understood bim to be a man of
great humanity.
Cross-examined by Mr. Txe,
Q. You say the general opinion of the field-
officers was asked, of which you are one? —
iL I do not. beliefe the geoeral opinion was
asked ; I believe it was private conversation.
Did general Mostyn then call for your opi-
nion, or the opinion of any other general officer,
touching what he should do to FabrigasP —
jifterwards we thought upon the subject.
After the man was gone to Garthagena P —
The same day, perhaps an hour.
The same day you were assembled there P —
Yes.
The day that Fabrigas had spoken of as-
aembling a number of bis friends together, the
general sent to convene a body of you P — Yes.
Court. You were a field-officer P—il. Yes.
Did you and the other field-officers meet to-
gether at the gjovemor's P — ^We came there by
Eit order, by bis desire.
Q, He proposed to you then for your opi-
nion, what should be done with this man ; and
V0U9 partly firom the former history, and partly
from modem auecdotes, thought he should t>e
banished P—il. Yes, 1 did so.
That was the ground of the accusation;
former history, and late anecdotes P — Yes.
Court. I shall certainly hear his evidence, if
you ask him the motives and grounds.
Mr. Lee, I only ask wheuier 1 bad taken it
right
Court. Did not you object to enquiring into
former instances of banishment P
Mr. Lee. No ; he has spoken of former in-
atanoes of bad conduct in Fabrigas.
CL Did any of jrou propose to the general,
or did be propose himself, to have any trial of
this genUeman before his banishment P— jI. I
believe he never did propose that ; for the judges
there gave it as their opinion, that that was
lodged entirely in the governor's own breast ;
two of them particularly, that it was entirely
in his own breast
And needs no trial at all P — 1 do not know
that there was any form of trial there.
You heard of no trial P — I heard no trial
mentioned.
You tell me the opinion of the field-officers
was this P — Yes.
As I don't know exactly who all the field-
officers were, and as I wish to deliver as many
of them aa I could from the imputation of that
opinion, pray did major Norton concur in that
opinion P— I do not remember particularly
yrhether be did or not.
Serj. Davy. That is, whether he was there
ornotP— il. He was there, but 1 do not remem-
bar what hif opinioD wai open the occaikip.
Then you cannot take upon you to sty whe-
ther it was a majority of opinion, pr unani-
mity of opbionP — A majority of opinion. I
believe there might be a Uifference or opinion.
Do you know a colonel or a major Rigby ;
I do not know what rankP — Major.
Was he there P— Yes.
Did he concur in that advice to the gover-
nor P— Both the gentlemen are here, and can
tell. We were telking among one another;
our opinion was in general.
Those that chose to give an opinion in fa-
vour of banishment gave it, and those of ano-
ther opinion either might give it or were silent P
— It vras not talking of giving an opinion, but
talking of the man's case, and what ought to
be done.
Then you cannot tell what number dissented P
—No.
Court. Were there any of the field-officers
present that did dissent to itP — A. 1 do not re-
member that any did indeed.
Edward Blakeney sworn.
Emmined by Serj. Burland.
Q. I believe you officiated as secretary to
general BlakeneyP — A. Yes; I was there
about seven years.
What sort of power does the governor exer-
cise in the arraval of St. Phillip's P— There is
no writ ; nothing can be executed there with-
out his commission.
What authority does he execute there P—
An absolute authority ; it is a royalty.
Have you known any instance of people
being sent out of the arraval P-7A few montha
af\er general Blakene^'s arrival, he banished
two Franciscan friars immediately by his own
authority.
Where did be send them to P — ^To the con-
tinent.
Court. Into Spain P — A. 1 cannot tell whe-
ther to Spain or Italy.
Q. from Jury, Was it in peace or war this
happened? — A, In peacetime. They found the
way to Rome, and complained to the general of
the Franciscan order, who corresponded with
the general upon the subject. Several letters
passed ; and general Blakeney wrote in one
of his letters, if they did not behave better for
the future, he said be would banish all the
Franciscans out of the island, and make bar-
racks of their convent. I ntercession was made
for them : they asked pardon for the offeooe
they bad committed, and upon a promise of
behaving well they were ailowea to come
back.
Did you ever hear that the power of the
governor upon that or a like occasion waa erer
called in question in the island P — No ; I took
it for granted it was banded down by the Spa-
nish governor, and they were governed bj
Spanisn laws.
Are they governed by Spanish lawsP— Yce,
We are told the arraval is a distinct juris*
diction fimn thereat of the istettdi and torn m
MI]
Fahri^ v. Mostgn.
MM aolbOTitv MM'diwI b^ the gortmort—
\m; it WwitbiD KUn-ahot of the foH. The
lln't know wbctber jon ra
•iar iaMuicea of baniihDMnt I
MUbi*. Foot reffimeDti were aeol oat by
At te kiny, to ratine four t^idcqu lb«t had
fan « longr time then in (he ganifoo. The
fifcnor KOeired orden to send home erery
oMwe MoiwiDg to the four regiment* then
tea : thej bad Men many ^ean in the iiland.
inpart bad been msdetohim, Ibatadnugbter
(foaeof the miiitwrjr people wu miMinff. An
tafBwj waa made: ahe wh proved to be lait
I priest The prieil '
Hting any tfa
a brought bHbra
Atgerenior; he gare bail nf lira people ; (tbia
*a( a military affair eotirel}) and next day he
■Mdcaned to produce her. He did not. The
pTwqi' embarked bioi directly, and sent bim
« baaid, I beh'eie, in the very tranapert that
WMteearry thia young' nomao away. The
iMtailcd to Gibraltar; and application w»a
^rfe iaDBediBtcly to the a;oTen>or by the ma-
airtraleaaf Hahao, and by the religious order,
■miaftbe gotemorto forgive him, and slay
Ihaifcip, Bad, if (be gotremor would gire leave,
tapm ('**JP'^ ■>" l>oanl, and brin^ back the
jArnm- Tbey begged, and pelilioned, and
■ncd tbe governor. Upon that the girl was
MRBeal up, brought Trom the ricar-general,
•bind at a remote end of the island. She
•M baoghl to me. The alory the told me
•^Aat tbe vicar -general had, out of charity
■Jwpaaaion, lalteo care other. She wai a
njfKtty giri. She caa put on board the
tMMrt, and sent after the Btet, and the priest
«M Weugbl back, and there were great
^■(■fa apOD hia arrival.
Mr. £e(. Vou know how little material that
k
Q, Id what office were you in ibis pli
A. ScCTCtary to the governor and commander
Bckicf by ui* king's commission.
Wben Jid you go flrat ?— In the year IT*9.
Tea were in Minorca, Ifancy, whenapoaitive
from England, that if any I'riar of
!an order, not a native ol'ihe island,
Atald CMMf ibto that islanil, he should nut be
■rimd lo remain upon it? Do you koon of
lay aucfa order in the first pUc« ? — Be so good
M IB rppeat llw order.
■* That in caie any friar of Ihe Franciscan
Oder, opt being a native of Minorca, but an
Jdarram friar, ahall come into the island, be
iktU Bot be permitlvd to take his reaidence
Ane, Ace." Vuu don't recollect any thing of
Ms, or (hat it was in obedience tu (he onler
if eoGDcil ibat this Franciscan was sent away f
bsjoa tbrget this, though it happens unfur-
laately when the g^emor obeys the order of
banperior, Ihatianowlobeauoted, aiapre-
Mdmi offaja CWD r^al uitbonty f
A. D. 177S. [149
WbM wa* tbe prirnt f — A native of Minorca.
And Ibe friar t— I understood them to be Hi>
norqoin*.
Can you lie positive about that F>~I do be-
lieve that aa a certainty and a fact: I am mo-
rally certain of it; I ivai not preMol at their'
lt»
tn* that yon have forgot even that nicb
r existed, till 1 reminded you i—I am
not deKT Uiat I remembered anch an order ex-
isted; 1 hare been orer agreat dealofgrotmd
Was It IheDBlnreofyoor office to acquaint
von with ail the orders of Ibe council of Eng- ^
land? — It came through my bands, yet very
likely and probably I lurgotit.
But yon might not have forgot it at the tim«
the friara were ordered away f
Mr. Lte. This was b 1753.— J. That k
langsnbaeqnoit: the affiurof tbe fiiar wa* ui
1743 or 1T49.
Serj. Bur/and. Then yon admit that the
king basa right to make such orderap
Serj. G/ynn. No; the conocil may maka
such orders, but we do not admit tbem to Im
legal.
Court. The case of the prieit was eome
yeara al^er tbe case ofthetwo friars?— J. Not
a great while ; about a year 1 believe, sooM
such lime: it is a great many yeara ago; I
cannot be powtiveto a few months.
Captain Jatuci Solaire aworn.
Examined by Mr. Seijeant Walker.
Q. I think you are a natitt
You know Mr. Fabrigas? — Not very parti- '
I thoD
Phillip's f—
You hare teen him there P — Several times.
What sort of a temper and disposition baa
he? — 1 cannot answer very particularly.
Do you know any thing of his ^tneral cha-
racter?—No j I do not
Serjeant Burland. I hare a very long anil
reapectable lilt of persons here to speak to tha
cbs ranter of general Mostyn, and hiag'tneral
behaviour : f suppose ibe gentlemen on lh«
other ude don't dispute Ihe general character
which haa been given of him.
Seijeanl Glynn. I shall out make the least
Btirropt to asperse general Moslyo'a characters
I shall found mysdrupon tbe facts.
Raphael Prato sworn.
Examined by Mr. BuUer.
(He not ipcabiog English, an interpreter wai
Q. Do you know Mr. Fabrigas the plaintiflT
—A. Yes.
What character has he home for some yean,
past in the island of Minorca ? Is be a peaea-
able man, or what? — A troublesome man, that
meddles too much with aiain.
US]
14 GEORGE m.
Actimtfir Fake Impi'UommetU^^
(144
WhataflMiBdo you umnf-^WA tbe go-
Court, The quMtion i«, whether opoB the
Iheli and cireomitaiiecf of the traiiHictioo it-
gtlft the ({iraarsi wet joftified is what he did ;
•Iberwiee they may enpty the iilaod.
Mr. Lee. Yet, this ishnd of all the people.
Q. to Mr. Wright, Yoa deliTered in theae
difereat memoriala aod papera : all that yoit
debt crcd io, are they genoioe Pf para or oapiea
of papera that were prciented io MiaorcaP^-
A, All, except the last, which' waa deUvered to
the geoeral'a aid-de-cmp, were deUrerad to
BM ; thai ia eadoiaad oo the '
Reads:
^ To hia exoelleiicy general Moa^o, co-
vemor and commander io chief of theislaod of
Minorea, ke. The hamUe Petitioo of Antonio
Fabriga8,a aatireand inhabitant of hk. Phillip'a
IB the aaid ishmd, abewetb, that your petitioner
baa now by him twehre eaakt of wine, the pro-
duoe of bis own rineyard, without baring par-
ohaacd ao much aa a grape of any other per-
son, of which he baa not aold a drop, when ae-
?eral other inhabitants of the said town hare
told all theirB» aa well of the produce of their
own Yueyarda, as that proceeding from what
they bought to make a profit by ; and this with
the permit of Mr. AUimondo, who docs the
function of mostaatapb. That the petitioner,
nnthe35tb of July, applied to the aaid Alii-
mundo for meuures to sell wine by the rate of
two douUera less than the current price, which
would bare raised a benefit to the troopa and
poor inhabitants of St. Phillip's ; bat notwitb-
itanding this demand was ve^ reasonable, and
confbrmable to the express condition of the first
of his mijesty's regulation of the 17th of May
175S, regarding tnis island, where it is ex-
pressly mentioned that the inhabitants of this
island shall always be permitted to sell at the
price of the afforatioo or under it, Mr. Alllmundo
reftised your petitioner, telling him he should
not sell his said wine. And aa this is not only
•gainst the reaaon and justice of the public,
and the garrison of St. Phillip, but also contrary
to his mi^esty's order in the said reguhition,
where it is mentioned that the inhabitants may
■ell their wines whenever thejr please without
any permit, under the afforatioo- price in the
island ; therefore he prays your excellency will
be pleased to order Mr. Allimundo to be more
reguhu* in this ffor he baa made above 50 casks
or wine himself, of grapes he bought to make
a profit bjT, of which he sold more than the
half, in prejudice of those persons who have old
and new wine by them), and to give your peti-
tioner the correct and just measures at the albre-
WM rale of two doublers.*'
Conrl. There is no date to this petition, I
observer— il. No.
Mr. Uo^d. It is marked on the back, '* deli-
Tared the Slat July, 1771."
• The next ia iDclaaad m the answer of tho
■mstastaph's feplj to Fabngaa the 7th of
Aagnst,ini. *«TobiaexoelleBeyrii
gOMral Mostyn, governor and oooasanderui
chief of the isfand of Minora, The hnmble P^
tition of the nnder-writlen iohabitanta of iha
aoburbs of St. Phillip's, shews. That daring Ifan
government of hia excellency heulenantpyo*
vemor JohnBton, onaecount of some oeasplaiBin
that were made oooceroing the direciioo, aaA
selling wine, a regulation waa made in the fiiil«
lowiiiir manner : that the sobtirbs of St. Phll*^
lip'a iihsil be divided into four wards ; _that iha
people ahall draw lota; that tfaey who ahnll
eooie out shall have the liberty to aell their
own wine, the aooidenta of the casks, and. the
prelereooe of the poor helplefa people being
eotirdy under the direction of the mustaalanh.
That regulation was accepted by tbeinlmbi-
tants of the auburba, and they are glad of iia
continuance aa it is observed to this diay. They
have heard that some of the inhabitanta are in«
tending to destroy the aforesaid regulation^ io
order that every one might sell tbeir wine at
the place they please, without dividing tli»
wards. This will be not only the total roin of
the inhabitanta, but it will also make them cam-
less in the culture of their lands, and leaa can-
ful in making their winea, and consequently
there will be very little wine of a good quality ;
therefore your petitionera humbly crave yoor
excellency to be ao good aa to cast an eye of
pity upon them, in not permitting thatauch a
good regulation ahould be ever altered : and
as in duty bound shall ever pray." SigaaA
by 58.
Serj. Glywu Are they maika or DaiDea?««*
A. Most of them marks.
Directed to lieutenant-general Mostyn.
** The humble petition of Antonki AUimondo,
mustastaph of St. Phillip's, sheweth, that your
excellency desiring to be informed about aneli<*
tion made by Anthony Fabrigas of St. Philiip'a^
relating to the selling of wine, says, that for-
merly the aelling of the wine of the iohabitanta
of »L Phillip's waa under the direction of the '
mustastaph of that suburb ; but as aeveral dia*
fmtes and difficulties arose from this, his exoel-
ency lieutenant-governor Johnston found it
proper to make a regulation for the sdiiog of
the wine, which was accepted with an entira
satisfaction by all the inhabitants of St. Phil«
lip's, and bv them practised to this day. At
the time 1 bad the honour to be made mustaa-
tapb of that suburb, the aforesaid regulation
was in ils full force and execution, and the aaid
lieutenant-governor charged me particularly ta
have it carefully observed. In consequenoa
of this, the said Anthony Fabrigas having ap-
plied to me a few days ago fur tlie measures la
sell his own wine two douhlers cheaper thaa
the common price, I thought it was impiissibia
to grant it to him wiihout forfeiting the dn^
of my employ, because his demand uuoo**
trar^ to the aaid reifulaiioo, by wbioh the ia* ^
habitants of that auburb are permitted to soil ,
their wiao only by tuna^ after Ihay haw
145J
fiMga$ 9. MottjfH.
A. D. 1T7S.
im
fawn loll ; for wbich letiOD your petitioner
laU the aid Fobrigu, that he oould not tell
hb wine; inlendiDH^ to say, by this, that he
not kU it in the manner he had proposed,
lit to tmjt without drawing lots, it being in-
■stent with the rtaid regulation ; thinking it
m hlo dutj to liave it omerved till such time
« joar ezcelleiicy or«lered him to the contrary.
li the former petiti<in he had the honour to
fUKnt your excellency, he thinks to haire the
CHW privileges with other inhabitants of St.
nOKp's, that is, to buy grapes, to make wine,
aid sell it ; and le^des, seeing that his prede-
Mwnii sold this wine when they pleased, not-
vilhUaiidiiig the said regulations, he thought
Ihtt tlie mintastaph of 8t. Phillip's was not in-
chded in it ; in which case your |»etitioner did
Ml think it was proper to prejudice his rights,
•r iboie of his successors, unless your ezceU
kncy ordered him to the contrary ; but to com-
ply with the inhabitants of that suburb, that
Acj nit^t be satisfied, your pelilioner always
inosed n role upon himself to sell his wine at
iltient times, and sometimes b^ the gross,
■mnoch that most of the inhabitants of that
Mbwb have sold the half of their wine, whilst
rpeiitiooer has not yet sold a third part of
It Anthony Fabrigas, or his father, says,
Aat he will not sell his wine under the com-
MB price, and that he has sold none of it as
nl, tke former having none to sell, the reason
■ aaly becauoe his turn did not come at the
when the lots were drawn, to which all
of the inhabitants of St. Phillip's are
but his wine will be sold when his
shall come."
1W PETiTioir of Anthony Fabrigas, Aug.
Idth, 177 1, directed as before.
*11ie humble petition of Anthony Fabrigas.
Ob the Slat of July 1771, the petitioner had
At honour to present a memorial to your ex-
edkncy, shewing the tran^igressiim and non-
aiaerTaiioe in the said town of tno regulations
given on the 8ih of May 1752, by his Britan-
nic majesty, 6ic. Sec, viz. thnt any native or
jihahitant of this island shall be permitted to
aril bis fruits at the fixed price of the afforation,
without any person's authority : secondly, that
no eoirmander, judge, nor officer, directly or
indircGlly, for himsflf nor through any other
noos, nhall he allowed to have any concern
any traffic, bargain, or connurcc wbatso-
: your petitioner having likewise repre-
.«.^^ U> your excellency that Antonio Alli-
Moodo, who does the function of mustastaph
in Ht. Phillip's, haa Itoui/ht grapes to make,
as lie rvally maifeafterwardo, 50 casks of wine,
af which he s«>ld more than one hall', in prrju-
ol the inhabitants of ii»t. Phillip's, who
the old wine by them; and that your pe-
_er waotetl to enjoy the liberties granted to
bin in the said regulations, offering to sell to
Ihe inhahitauts and garrison of St. Pbilhp's,
12 ra«fcs of wine he has by him of his own
induce, at two doublers less than the ordinary
iiurataoo or fixed price, dsc. yesterday, the
VOL. XX.
19th of Aujpist, your excellency's leeretary*
told your petitioner verbally, &c. at which year
petitioner was greatly surprised ; as he is ready
to prove judicially, before any one of his ma*
jesty'sjudges of this island that yourexoelleticy
may think proper to appoint, all that he hng
said in his last snd this present proposal ; in
which caae, &c. beiog sure from the instice ho
has in his favour, and from your excellency'o
good administration to administer it, prayo
your excellency will be pleased to give his de-
cree at the foot of this memorial to your peti*
tioner. He hoiies thereby to be at liberty to'
sell his wines at two doublers less than tha
afforation set by the mustastaph of St. Phil-
lip's, &c. and that the mustastaph hss acted
unbecomini'' the office he exercises of musta-
staph of St. Phillip's ; which being evidently
proved, will undoubtedly oblige your excel-
iency to give the necessary orders for the relief
and better advantage of the inhabitants and
garrison of St. Phillip's."
Serj. Gfynn. May it please your lordship,
and you gentlemen of the jury, to favour me in
this cause by way of reply. Considering the
length of time that has been spent already in
this cause, I should ask your pardon and in-
dulgence for adding more than 1 could wish to
the time that you have already spent, in an-
swer to those arguments that have been used
in behalf of the defendant, and in submit-
ting to you such observations as occur to me.
For, gentlemen, the cause, as 1 conceive, hav-
ing already \«andered very far from its true
merits, and being perplexed with matters very
foreign to the question, it is incuinbent upon
me to make such an attempt as my powers will
enable me to do, to recal your attentk>n to the
real and true question in tliis cause.
The question, gentlemen, is shortly stated ;
the discussion of it, however, requires some
time.— The question is merely what satisfac-
tion and reparation Mr. Fabrigas, a subject of
Great Britain, as much as any man even bom
in the city of London, has a right to demand
for the treatment he ha^ received. He is a
native of the island of Minorcii, born in the
Britannic dominions ; and his lordship will tell
you that every person that is so born is a free-
born citizen of Great Britain, intitled to all its
liberties and privileges.
The question therefore is, how a man thus
circumstanced is intitled to have his case con-
sidered by an English jury, and what satisfac-
tion you shall think due to* him for such kind of
treatment as he has undergone ; such tortures
of the most studied, and the most perplexing
and excruciating kind, (if you take into consi-
deration the feelings of h man's mind, as well
as his corporal sufferings) as have by the wan-
tonness of power been inflicted u(Km him.
Gentlemen, in the discussion of this question,
1 shall now barely mention to you one topic
upon which a great deal of your time has been
taken, and which 1 mention merely for the
pnrpota of clearing the cause of it, and die-
147]
H GEORGE IIL
Actimjbr False ImprUonment^^
[148
nliMng it totally from yoar considenUion ;
and that ia» what respects tbe character of Mr.
Mostyn the defeudaot. You are told of tbe
high and respectable names of great men that
bare given their attendance here to coonte-
nance that character which you are told Mr.
Alostyn indisputably possesses. My answer to
it is, that if be bad brought the pnYy-4souncil,
if be had come with testimonials in his hands
ftom the two houses of parliament, it would not
hare fsried the consiueration of this cause.
Tbe question here is wide of all consideration
of character : vou must decide it upon the facts
which appear before you in evidence, and from
them you must judge of the merits of lliis
cause. The motives of Mr. Mostyn's conduct,
and every circumstance that is material or re-
lative to that question, you are to decide upon ;
and beyond that, gentfemen, it is neither my
desire nor my duty, it is far from my province,
and far from my inclination, to attempt throw-
ing any kind of calumny or aspersion. Let
Mr. Mostyn, with all my neart, ir he can, re-
concile that conduct that has appeared before
yon to such a character, to that verdict which
1 am confident you must pronounce upon this
cause. Let Mr. Mostyn eiyoy tbe eaieem of
his great and noble Iriends ; I have no desire
to deprive him of it : I have however a zeal fur
the justice of this coimtry, that goes something
beyond the mere line and duty of an advocate,
—1 owe it to humanity,*— I think it is a ques-
tion of humanity, not depending upon tbe par-
ticular laws of any country : but it is a ques-
tion highly aflectmg the honour of the British
nation, and a question that will throw disgrace
upon our laws, oiur constitution, and the hu-
manity of our judicature, if this man should bo
sent Iwck into the island of Minorca with his
wrongs unredressed, and an accumulation of
ezpences upon him.
I own therefore, gentlemen, upon these
grounds and these considerations 1 fed a
warmth and a zeal in this cause, which I hope
will justify me for the pains that I mean to
take, if my strength will support me in it, in
laying before you what I conceive necessary
for your consideration. I have said, that I
mean to deprive general Mostyn of nothing
that is not necessary to tbe reparation of the
wrongs of this much-mjured plaintiff; that be
•ball enjoy his good name and his character
as far as my doty will permit him to enjoy
them ; 1 shall maze no observations upon him
but what arise from the cause now bmre you.
1 have some reason to wbh, and to cximplain
Ibat the like conduct has not been observed on
the other side. General Mostyn is to be graced
with the countenance of great men; and a
plain En^ish jury is to hear the titular testi-
monies ot the character of a man invested with
a high office, in high power, and possessed of
Kt riches ; yet ih% cbsracter of a poor, un-
ly, helpless individual, an inhabitant of^an
islaod, part of tbe territories belonging to tbe
crown of Great Britain (confident too that be
lifed under the pielectioo of tbe ooBStiliitM» of
Great Britain,) is to be treated as a subject of
ridicule, because he is not a man of high rank,
though you are told he is a man of charader
and of fortune, such as has intitled and recom-
mended him to the company of men of rank-sa
that island. Have we not some reason to
complain, that such matters are now introduced
to reoutt his just and well-tbnnded expectatione
to receive aatisfaction from an English jury
for tbe wrongs he has already sustained ? — u
it not eneogh that this man has endured «■
imprisonment of six day a, under the must UDf
|>aralleled hardships of rigour and cruelty tba|
can be inflicted upon a human being ? is it not
enough that he has endured a banishment from
his native country ? but, to heap calumny and
obloquy upon the head (»f a man that he baa
iiiiuied, shall be with impunity be permitted te
digress wide from the tacts in this cause, to tell
you that he is a profligate idle map ; that with
a family be neglects aJl the duties of a husband
and the master of a family ; that he is devoid
of moral character ? Is a poor helpless straamr
In this kingdom thus te ne represented, after
having ben driven out of his own by cruelty
unparalleled in tbe British history? Nor can
any history be produced, even of any other
country, tliat did not receive a most signal die-
countenance from tbe power of that country,
A man thus driven out, seeking refuge fram
tbe English laws, firiendlesB in this oountryp
ignorant of its language, is treated in tba
manner ! A gentleman comes forth, and eu-
tertains you with tbe oonnezions, chareder,
and acquaintance of the powerful defendant s
he then enters into the private conoerns eod
private character of the plaintiff, and dwdlg
upon the ignominy of it, and endeavours te
impress you with a prepossession that it will
not be in "his power to remove it. I trust thy
conduct has not escaped you. Not a word bee
fallen from us of tne character of ffeueral
Mostyn ; 1 mean on that head to be simt for
ever ; and if I had it in my power to eeperae
his character, unless it was something relative
to the cause, that made it my duty to produce
it before you, l«should be very silent about it.
Having dismissed, I hope, from the caoee
these considerations, let us now recur to the
defence that is set up by general Mostyn.
And, gentlemen, the defence set up by the ge-
neral is, that Mr. Fabrigas is a man dangerous,
aeditious, and turbulent; that he was in the
act of perpetrating sedition in the garrison of
Minorca ; that there was danger even of the
loss of Minorca itself; that it afl'ected the com-
mercial interests of this country ; and, as well-
wishers to this country and the commerce of.
it, you are called upon to give a verdict for the
derandant, or to reduce the consideration of
damages so as to pronounce something worse
for the pbuntiff, if possible, than even a verdict
for the defendant. — Gentlemen, their state of
it is, that this man, Mr. Fabrigas, being a fac-
tious, turbulent, and nnouiet man, was pursu-
ing general Mostyn witn an improper impor-
tnoity } that he was eudeavounng to apctud
I49J FoMgoi «. Modj^
lidiiMt to raise dinooteals in the girriMm it-
•dr Ibat aflcdcd the very wahnj of the ffo-
•ad the iibuid was in danger; thel
a threat that wenM hate made ge-
if ostjB reepoaaible with hie bead, if be
Waol preveotca tneb a fobemefironi being
aniad ioto eieeiition ; that be said, if bb pe-
iha waa agata refected, that be wonld eonae
tf Ibe head of 150 flaen, a menaee represented
a if it Bpported a threat that be would come
m Iha bead of an armed force : such was the
SMBtroetioB bis eounsrl put apoo it, that be
aeald appear ia such a way, as to make it ne-
mtmry far the gencial to comply with his de*
■sada ; that there was bo end of all gorern-
■sat aad all order in the iiland of Minorca,
«d a valuable part of the British dominions
by Ihca at the merc^ of our enemies. Gen-
Ibssea, thie is a well-drswn picture, and was
my powerfully urged to you. It was some-
over>paiBled, as I conoeire jrou will
And the necessity of doing it is an ob-
ioa that will aot escape you ; for less
this, 1 do conceire (I rest myself satisfied
'btha general humanity tbtt prevails in the
bassts of Baglisbmen, and iohahitants of the
oiy ef London) less than this could never have
BvVed aa any colourable justification for such
swdnet aa has been proved upon general
Msstyn: this therefore was necessary to he
UMsd to yon, that it was extorted, (contrary
li Iha feelings of bumsnity which are said to
nmy and influence that gentlemtn in all his
emdnei) tliat this was extorted from necessity ;
Ihsl there was no time for cousideration ; that
itnaa aa eroerpfency he was required to decide
i; it snpeneded therefore all forms ; it was
ly necessary, for bis i^rovernment would
exiKted if be had been at all induced
one it ; and that possesnion of which
kt wMM tlie guardian, and for which he is said
Is be tesponsible with his head, vi as in danger
if being for ever lost to Great Britain. 1 can
if e a ease like that, adding more circum-
than even the ingenuity of the couniel
ubich would not justify, though it
It extenuate indeed, the conduct of the
naader. But waa there any thing like it
this case ? This, 1 submit to yoa, gentle-
le tbst the counsel thought neces-
lo o|ien ; and less than this furnishes no
or colour of justification for general
Inalyn. Gentlemen, when this cause was
opened to yuu, and when the general's de«'
fcnec waa stated to you, that the general was
ohiigod to act in an emergency ; bonnd by the
wmn religious of ail duties, to look with cir-
cnmspection to the care of the garrison in in-
naal danger, it was necessary to act as he did ;
h was an act therefore not of inclination nor of
dshheration, it was an act of absolute cogent
irrceikuMe neces^ty, and which he had been
najoaiifijbte if be bad either omitted or de-
irrrcd for a dar. That is the nature, and that
is ibe colour of the general's justification : but
did the general know how different the case
thu would appcv upon evideooa wouU be
A. D. 1773.
[150
firom that which be had instructed his coaasel
to represent to vouP it was necessary that
the defeace should be guarded ; and then thera
is a prefiitory defence made, which in my opi-
nion very mucli deserves your consideration.
Gbneral Moatyn, with the prodeooe that from
this hour 1 smII think makes psrt of hb cha-
racter, chose to decline the jurisdiotion of an
Englbh jury. I don't wonder that be did ;
and 1 am not smased that you are told that
th|a M a noatter extraneous to the jurisdiction
of the courts of judicature in this countrr }
that you, as a jurv, are incompetent for its de«
dsion : it b of all cases in the world that case
which, as a defendant, general Mostyn must
be inclined to w»h might never appear before
an English jury, it is a tribunal that he must
dread; it b a tribunal that he must shrink
from ; and be acts upon the soundest motives
of policy and prudence when he endeavours to
evade it.— If that should prove insufficient to
him, the next resort is in the general law and
doctrine resfiecting the power of the governor
in the island of Minorca; and you are re-
peatedly cautioned not to consider yourselves
as administering justice by the laws of Bog-
land. You are told, that you are deciding a
3uestion of the laws of another country, far
ifferent indeed and materially opposite to
those of the laws of England : you are called
upon therefore to judge thb cause by another
rule, and by another standard, than that which
you are in the habit of. Considering and try-
ing causes by something more than this mitft
be desired of you, before the ends of the de-
feodant can be completely answered. Yoa
are desired to divest yourselves too of the feel*
ings of humanity ; and they are endeavoured
to be suppressed by representing to you circum-
stances of horror and danger to the general
trade of this country, in case you should sufier
even principles of law, of justice and iiumaoity,
to prevail in this cause. Gentlemen, it waa
stated to you, that in this island of Minorca
there is no law whatsoever; that the form of
government is despotism; that what may be
called the law, is the will and pleasure of the
person that governs; that the king b abso-
Fntely despotic ; that he may change and alter
the hws of this island as he pleases ; and not
only he himself can do it, but that he has de-
legated that power to his substitute ; that he ia
sent over to govern, not by any fixed invariable
pbn of laws, but such as he thinks proper to
make, such as he thinks |>r<»per to prescril>e to
the inhabitants, at any time that in his wb-
dnm it shall appear just and expedient that it
should be so. This U the state at' an English
government, and this is the construction put
upon an Enf>liiili patent that passes the great
seal of Great liritain. 1 will be bold to say, that
if that construnion is ever attempted to be put, it
must be put lepugnant to the words of thai pa-
tent. I will be bold to say, that if a patent
passes the great seal contaiuing such wonb,
there b not so feeble a judicature in this king-
dom tbit wonld not dare to pronounce it void.
151]
14 GEOBGE lU.
Action Jor Fake Imfriiotmaxt—
[158
tnd every act done ooder it illegal. Aud I will
venture to say too, it it imponible that the
ffreat man that ihonid dare to put the frreat sea],
and proititute public authority to a patent of
tbatkind, but he muat anawer to pulilic justice
with his head.— And yet thia haa been con-
tended to be the true genuine oonatniction of an
English patent, the authority under which thia
same general M oaty n, thia governor ofthe island
of Minorca, has presumed to act. Gentlemen,
having stated bow repugnant it is to every idea
aud principle of law and justice, it gives me
concern to hear in what habits, possessed with
what ideas, men raom from the island of
Miuorca.' It has been contended to be right,
because it has been done before. If it has lieen
done before, I say it ia alarming, and it ia time
to put an end to it. You have had gentlemen
with military commiaaions appearing here in red
coata, to give you legislative constructiona ; to
tell you, aa lawyers, what ia the law of the
ialand of Minorca. You have had a gentleman
who aerved aa a aecretary to governor Mostyn,
who comes home and tella you, that the go-
vernor with respect to the administration of
laws that regard only questions of civil pro-
Krty, is limited by the laws of the country ;
t with regard to criminal jurisdiction, hia
power is uncircnmscribed, and totally unli-
mited ; that by his proclamation he can change
lawa whenever he pleaaes, and the law of to-
night is not the law of to-morrow, if that man
tbinka proper to issue his proclamation to re-
peal it ; that the courta of juatice are under a
tyeto respect these proclamations as laws ; that
the individuals of the island are all to be bound
by it, and if these laws are issued but an hour
before, they are as Ending as if of long standing
in the island.
These are the ideas of law that theae gentle-
men bring from the island of Minorca, under
the government either of this general Mostyn,
or hia lieutenant-general ; and upon the autho-
rity of theae gentlemen that have furnished
thennselves with snch ideas of law and justice,
yon are at once to be prevailed upon to deter-
mine that the lawa, liberties, and privilegea of
this kingdom in no respect extend there. It is
something shocking to English ears ; a des-
potic, an arbitrary, an unlimited power ! (for
even the words nave not been spared) and
yon are here, aa an English jury, to pro-
nounce that the king of Great Britain, and
peraons acting under bim, are to exerciae
thia unlimited power within a part under the
jurisdiction of the jndges of England. If this
i» offered in extenuation of the conduct of ge-
neral Mostyn, added to the strong irresistii>le
calls of justice and humanity that must press
your minds more than words can, there must
be added to it the most powerful political consi-
derations ; for you have been told in the course
of thia argument, that the ialand of Minorca ia
an insecure poasession to the crown of Great
i'nuin ; that iu inluONtanta are in a great
neaiuro disaffected. If they are, has not the
«ftUM of the disaffectaoo beeo very esplkiUy
set forth to yon? Is not the care as evident F
Correct these gentlemeji, who think that their
hands are not bound by law and justice, that go
over to exercise power over these helplesa
men. Teach the poor Minorquins that tho
English Uw will protect them ; that their
governors are bound by law and justice to
teach them the blessings of an English govern-
ment ; you'll remove disaffection ; yoo'U
get a stronger guard than all the caution and
wisdom of governor Mostyn, his secretary and
friends, powerful and titked as they are, and
Uiis fatal system of military despotiHm ; yoa
will have the island to serve you, you will have
the affections of the inbabiunts to assist yon,
von may command them whenever you will.
Vet, gentlemen, it has been dwelt upon as m
topic, that this island is disaffected ; that their
inclinationa are against the English govern-
ment. And who can wonder at it, if what Mr.
Blakeney says he is clear in his recollection of?
I hope he is not ; I don't mean to deroeate from
his veracity ; — that a power like this has been
used of arbitrarily aending a man, a native, an
inhabitant, from the island, his friends living
there, his possessiim there, for no offence com-
mitted, but at the absolute will and pleasure of
the governor. You have heard a great deal of
Turkey, you have heard aomethin^ ofthe laws
of Ja|)an, you have heard of other despotic
powera, whose names I trust are sufficiently
odious in the eara of all English hesrera ; and
yet you are told that the governor of this island
IS equally despotic with any of these fmwera;
tliat he has no limits but his will, no bonnda
but his pleasure, no law but his inclinationa ;
that the lives and persons, if not the properties,
of all the inhabitanta of this isianti lie prootrato
before him, and they must depend upon bio
natural good inclination and humaniijp in whal
degree they are permitted to eujuy them.
This is the state of thia island ; and 1 will bo
bold to aay, it would be apeaking injirioiialy of
the government of Japan, — it would be upeak-
ing injuriously of the government of Turkey,—
it would be s|ieaking injuriously ofthe emperor
of Morocco's government, to def^cribe that as
the general state of these subjects ; it never
waa in the idea of even despotism itself till thio
very hour : it is violence aud outruge, it ia tho
law of robbery ; it never obtained in any placo
where the idea and form of a civil go«ernmenft
ever was allowed ; because, if the legislative
power and the executive meet in one person,
that distinguishes a despotic government from
the happy state that we enj(»y in this kingdom.
Our king can't prescribe us laws, but he most
administer us justice by those lawa that our re-
presentatives make for us. That ia the state
of this country, happily distinguished from the
state of despotic countries, fiut in no despotic
country whatever did this idea ever obtain, that
the prince, the despotic Sovereign, call him by
what name you will, was to adminiater justice
by bis incident pleasure, will and power. If
he made laws, he made them, proclaimed and
divolged thomi and the ralgeeli were govomed
Fahrigtu v. Mailyn.
iff Hbcn, lud iheir k'mgv were raled by tho«e
kuc But lierp thia gentl email, Mr. Blftkeney.
fra Hide licyunil iii!i cotiiuel, (hi« counsel
««U Mt tuu an; thittg like this) but bc-
oriyiiC to ihi« |^ntl*:'in*u, the inlittiitaniH or
itB«t«Dd, trithoul llie leut imputation of ile-
tutacy. oilluiiit any mode or Ibrm of trinl,
•tre WDHnced, instantly iraniparled,aDd re-
Hrad from itieit frieiidi «nd rvlatiiiu* for crer,
Mtoa il M the i^od will Da<l plmsure of ilie
fncTBor ever to pfnnlithem tortfiuni. I say,
all lk« most *liiinie>ul auecdote I list ever was
fcMd •I' a>>y governnirnt wbalever; aad a
ImImw sf Egypt would merit l lie bow-Blrinfr
fo brtaf lii« m so illpgnl siid so indecent a
www. The ttmo, llie ajificarsTice, the
II ■Mail rr of joltice, are all nt importance tn
btWarteil, anil nbich ibe policy even of Ihe
h*<aM prescribe ; jiet have our ears been tor-
Mrcd, and oar palieoce and lime been spent
viAdaetritm of this sort, lij gentlemen who
W> (»jay«il IfUttxin that inland, and nhich
hii« eoMMMMly been exercised by tliem. This
■ ■feal geaeral Hoslya has bet up in bU de-
lUa wiajMy, it is Raid, makes laws whenever
kc fWasM i it il iq bis sole will and power to
wpH vbat laws be pleases upon a conquered
DHtry. It is mnre than«Ter I beard. Tim
fm^Mne |;q«s I'unber than any book, ihal
I'f I rv*d, can justify me in allowioo' ; be-
'•, as I bare understooJ ii, if true, the
. ui^rst aulhoritin support thpse prerojpi-
rt One Cliritlian pnuce conquer* a Cliris-
kiflgilotn, thai is ijntemeil by ii« own laws,
■•• H i* ll>e will of the dnqueror to aliro-
. 'd»M> laws. The t'unqurst of Ihe island
' Hmorva «■« not msile liy qiieeo Anne per-
' '■Hj. btil it was made by ibe aiih|ecls of
m Briinin, and belonfci to ibe supreme xinie
''irat Britain. Dili if yoii ifive the jiower
ilie aofrreiiiii It mnlie Ihoie Iuhb, allow
umlaW rivbtly exercised. Can you sup'
|a>*U tt Ixrlonirs to the ^vemor 8p|H)iuIed,
tlrfbyai
I arbitrarily and iDcontmlnhly, accord'
■f m Ihair own wdl and {deasurer For in
w«» W funnab the defemfnnt Willi any colour-
lM»4»l«BCv whaUter, be ia in lie juslilied by
tin*, which you mutt candemn a* pre-
1 «f nildier^ and burelary, equal in point
la either nf Ihaselerm*-, or jon
I ibe constituijiin uf
IW apffit, tbr rraina,
InM Bnlain. Gut wilh the idva of any law
seiner ihai ««cr obtained in any stale ur
•■HH: both tbene you muit lubacnbe In l>e-
cutnply wilh ihereciuMi thai ia
lprauonnceaterdictfurcen.MDB-
kn^— TIm (rBtlemrn then baring lakeo Ibis
JhHi aa4 rcmai'c line of delence, whirh Ibey
^'"oslrt ••nlil ooQlaiu and embrace any de-
- ■ ikal (bay IbotiKbl proper to ulfer to you,
f aaJU proceed witli ihcii: ilefeiice. And,
A. D. 1775. [154
gentlemen, you are laid, that ma il was Ihe au-
thority, 10 It wan the duly of Ihe jj^neral to
proceed ai be did ; that be could have nu {ler*
aonal inalei utr'nce to a man so remote from bia
silualion, go unlikely to fall in wilb Ilk connec-
tions ; that the man was mulioous io the wbula
of his conduct ; aud that al last he commiiied
that duDfferouB act of muliny thai made it an
indispenEible act of justice in llie ^fuveroor to
commit him, and to tend him out of the isk'nd ;
that if be bad not done il, and a consequence
had happened fatal (o the inland, Ihe gurernor
would hare been responsible for il. Why,
l^llemeu, llie slate uf il so mui'b exceeded
Ihe fncts, it cetlainly was expected by the
learned counsel wbu offered il to you tbat ba
should prove somelhing less, and therefore
EroTcil this, (lioLig-h I should conceiie il would
y no means bate inlitled Ibe general to a verdict,
yet Buch conaideraliani, — an act of absolute
uecessily, Ibe aliernaiive of seeing such a Irnst
as Ibe island of Minorca lost lhrou([li his re-
missness, or Ibe rvmnring of this man out of
the island — I should bare conceived might
very well have furnished an excuse for him in
bis conduct : 1 am sure il would hare taken ofT
from any edge, any waimth, or keeaness in
which an action would bare been supported
Ihal iTould have been brought against him.
Bui, large as Ibe ground was laid, il was to
lake in certainly aimibrr case than this. No-
ibing, as I conceive, and as ] submit to vou, of
Ibis kind has been proved. Petitions, lellers,
mesBsges hare been giren in evidence before
you, and commeols are made upon the very
petitions themselves, as carrying wilh them
slroiig proofs of a mutinous inclination ; and at
last there is a broad fad asserted, that there
Has a downrieht threat of Bp|iearing in arma
al Ihe head of laO men.
Now, genilemen, ^ve your allcnlinn lo llwse
lellers, lo ihese petition] that bare been read.
They are expressed, as i conceire, in decant
and in reipeclful terms ; and if il is an act of
muliny, I do conceive that il is impossible fer
any one man In complain tbut he has received
wrong from anoiber, either hy word or letler,
but be muKi be i^andemned as a mutineer in Iha
island of Minorca; and the public faith, the
ualional faiib Ibal is pledged lor the proleclion
aud enjoyment uf their property, is reduced to
thai slate — * You shall enjoy il, but if another
presumes to wrong you, you musi not dare,
upon Ihe pain of transportation and long im-
prisonmenl, to iiliiT a word of complaint ; fur
It it jii'lged dangeroiu, ilis nut coiisiiteDl with
ihe wisilum of i;o«ernmeni lo permit it. and
we are called upon lo puiiisb you inosl severe-
ly.'— Gentlemen, the transaction appeara lo ba
ibi>: that anotbcer in Ibe island of Minorca,
called a muslaslaph, was ibe man frum whoin
ibe isUnders were to receive what ibey call tlia
alToraliDn or the asviie price: Ibis was iba
couceplion of Mr. Fubngas the pntiiioner.
Another notion preraileil, thai tbe order «(
155J
14 GEORGE III.
Ad6iimfar Ftdae Imprisonment—
[IM
CAUDcil reeeired from the erown, which iM cod-
sisteDt wilb their oapitultdoo and the rights
stipulated to them, ought to be obeerred ; hj
wbieb order tbey were at liberty to lell their
wines after a certain price bad by a public
officer beoi once asHzed, which is called the
afibratioo. But the mostastaph of the island
thought proper to say that the order of council
was superseded by another order, which com-
ing from the active person in the go? emment,
though not the principal at the time, muit ne-
cessarily supersede thai order of eouocil ; and
it was insisted upon that goremor Johnston's
order, judging of the inexpedience and impro-
priety of the former, must take place ; and
that Mr. Fabrigas was wrong in his concep-
tion of what ahonid be underBtood to be the law
of Minorca. Upon lus presenting his com-
plaint to Mr. Mostyn, be recei? ed for answer,
that Mr. Mostvo would immediaiely call upon
the mustasta|iD for bis answer. The snswer is
fi?en } and u consequence of it Mr. Fabrigas
m told that his petition was groundless, for that
the mostastaph had most perfectly satisfied the
governor. Mr. Fabrigas then desires to see,
lor confident as ho was that he was well
grounded in his complaint, yet he desires to see
file reasons that the mustastaph has assigned.
The sight of these reasons is denied him. In
consequence of that, he presents another peti-
tion; which is, 1 think, reforred to some of the
law officers of the island for their considera-
tioB. They run it over, and tbey report them-
•rires satisfied ; and tbey insert the answer of
the mustastaph, wbiob answer the plaintiff Mr.
Fabrigas is very desirous of seeing and answer-
ing. The business then proceeds, as it is said,
in repeated petitions; Mr. Fabrigas conceiving
that the governor is misled, not that be wilfully
denies him justice, but is misled through the
influence and misrepresentation of this musta-
staph ; and that produces at last a convention
of some of the island, in order to take their
of the matter. Here it is not clear what
the sense of the majority ; but here the
mustastaph had weight and interest enough to
get that represented by the miyority, which he
wished to have received. This being on a Sun-
day, when many of the inhabitants were in the
eountry following their diversions, and Mr.
Fabrigas thinking that the sense of the people
had not been properly taken, comes again to
the governor with another petition, not censur-
ing the governor, not upbraiding the governor,
not intimatinff the least uisapprobation of the go-
▼emor's conduct, or jealousy of his inclination,
couched in terms of the utmost decency. The
consequence of it was an answer, which pro-
duced from Mr. Fabrigas that very answer upon
which the defence of Mr. Mostyn has been in
■0 great a measure built ; to which the gentle-
men have applied that evidence which was pro-
duced by Mr. Wright, Mr. Mostyn's secretary.
Mr. Wright says, that first of all the conver-
sation was interpreted by a priest, and then by
another interpreter ; but he does not know who
iaierpretcd tnosa expresskms whidr fell from
Mr. Fabrigas, which he apprehended to be of
a dangerous kind, and therefore discouraged^
and advised him never to repeat again. He
does not know, he says, whetner the expres-
sion was to this purpose, that he would come
again if permitted, and that there ahould he
another petition backed with 150 men, or
that he would come with 150 men to back hia
petition. 1 am sorry for it. But here 1 can't
tbrbear a comment ; it would be betrayingmy
cause and my own judgment if I did. This
gentleman is very sure that one or the other of
these were the expressions. He professed ie
refresh his memory by a paper he had written
down within an hour and a half of the trans-
action ; and he thought proper to add, that it
gave him au alarm, as if something dangerous
might follow.
Mow, gentlemen, what are the words which
he has written, from which he said he made
his communication to the governor, and which
certainly contains the truth, as he recenllj
wrote it down P Why, that Mr. Fabrigas said
he would come next day with a petitwn of the
people concerned in grapes and wines, which
they would sign and come with to the number
of 150! These are the words wrote down bj
Mr. Wright himself. Why, gentlemen, I
submit it to you, whether in common sense and
plain honest interpretation there can be any
mistake about these words.
You hear, gentlemen, this was a oootest be-
tween the mustastaph and Mr. Fabrigas. The
governor is appealed to as a judge eipected !•
be, and who ought to be, impartial between
them : be was appeale<l to with decency on
one side, hut leaned rather with friendship on
the other ; for the interest of the governor ie
not unconnected with the emoluments of the
mustastaph. On one side it is insisted that
this was not the sense of the majority of the
inhabitants; on the other side, uotwiihstaading
what had appeared from the advantage taken
upon a Sunday, when many could not appear,
yet still that the real sense of the majority of
the inhabitants was on the side of Fabrigas.
Gentlemen, is not that the most natural key ?
does not that furnish the most obvious inter-
pretation to this.^ lie would come with 150»
in answer to what he had been told ; for his
petition bad been rejected upon the ground
that it was not consonant to the wishes of the
inhabitants, for tbey bad been summoned, had
declared and signed against it. He answers,
that 1 will come the next day with a petition
signed by 150 men. And who are these men
to be F Why, he says, persons concerned in
grapes and wine. Can you conceive tlien thai
he threatened to bring an armed force, that be
threatened danger to the garrison ? Was it not
a natural answer in that dispute that then sub-
sisted between him and the mustastaph ? la it
not clearly explained by the words, *^ the per*
sons concerned in grapes and wines/' that ha
meant the mistake should be rectified the next
day, and that it might appear from the number
attending that petilioDy upon which side the
Fabtigas V. Maslifti.
kUnden ireK ? There wai no
toniiuokeil, ihttcnul'I
U impuMlUe. TliitI
Ui»l an luau lliit wrote lliis
afv»«ald h«*c given llie eridencelbU Mr.
pnfhl lias givea, tutil mv lie waa ia ilauU
•il|Hlk» tec<4l«elkia of ific particular wordu
■«*«Tc a«d, whtMlier he irould cnmi; with a
puiivo Inefced with 150 men, ortbat he nould
eve oilb liO men taback his petition, lam
piindil ibat 110 tnae who had wrote ihJE, am)
•iKk be trtta vou is the Irutli, could «(ei' eii-
IHua (hat kioiinf doubt that Mr. Wri|;ht au^'-
fMi4 In yo». I am as conKdeDt that nn man
mM hate aiiirtaken lliii. that had not some
MMea W UMw«r bv alfectinc to mtiflake it.
W what waa Mr. W iiglit'i, what was ihe t.»i-
IKWr'a cooditct upon tbia accuioof Uid
tMarur llirni enijuire bIW iheae MO men?
V lUi waa a matter that would gire Kueli uo
imm to a (pTcmnr of a ffarrison, wsh it jiro-
Eta acq«i«*cc in (be remmsl of one only t
• thtra any enquiry made alter the others ?
If it Mrack Hr. \VTi|>hl a« danKerouf. would
fetal bare orcurrrd to him, lo tlOfi Mr. Fab.
npaapaa ibeiDManli' Would he not have de-
mmM iba aMnei nf tbene 150 men? Bat
■r. Haalya at ancc abnndoM all his irbaracter,
kiba furiHMe of Ilie cauie; he is noir do
haier iha« raithtnl officer, that good and trusty
MM', (tiairidiffeiitHiid circiimsueel governor,
te jm, ware Wore lold he was. Is it not
^•hUo hoi it ihould hnfe ocourred to both,
teAre pnrpn- coodiiL-t naa. if iliis was sjuat
^MfretaUoa ordie word! that oere u tiered, lo
1' that man U|i P not to atop there, but lo
>>ttoB4TaKBt»l him. I" discover his nbetlora
■1' «Kam|>T>ce«, to nurtue the eoquirT, aud
;'^« the aatirty oIlhcifarriBan. wbicti (hey
■rm^^ 10 tie ao iniicb in danger ? It is mac(
•*M fta* all the rjrcamataiices, thai neither
■' dm appfebended any danger whitioerer
■ Atfimaon; Ihey «li^[it in quiet as before,
flaa aaaM he tome other reason I'or their pro-
ta the uiauner iliey hare done against
beaides ibat which arises from
and emcrgancy which naa re-
ynu, or the isterposllion that the
i'lraai waa called il|>nn by iiidispensible doty
aaha, br the nice of {ircsening; the i;ar-
tliniwB into coDfuBJon, from
nnny's bands. There must
k, I aaj', BOBia oilier rraiioii lor acting in (hit
Mr. Cabrii^a. Mr. Fabrigas
tJiny would hnre it, of a dan-
^ . that a dangeroiia design was
ataMl J** t>* <* tlie nnlv man dial I'or aix
fcj» rwlai in the istatid in close imnrison-
■M, attd thcR ia not any inquiry made after
k pnvMaa pteanmed ID be ooncemed with
ha m the liuaiora*. Ifilic governor had coo-
■BM4 that ii»pn>aiiion, and withnl lo beset
^Ib M kia Hiiiniiin, ibe ammranee of the pe-
(^ iha i>c«i day wmild hate anawerrd it.
*k« (aor poor Minur(|aia<, (wbirb liir some
"' Mber are drucrilied to be of the
JttPf and which yuu will
A. D. 177S. [I5»
therefore presume to be the moil inoflensire)
wbeo Ihese four men iilooe came with the |ie-
tilion, did governor Moslyo then eontiooe in
the o|Hniua that this man waa the frainer and
cnnlriTcr of dangerous desigiw, to he backed
»nd RUpiwrled by multitudes f Must not he
change iiis ofiininn (ben i* Did the imprison-
ment end thenf Were the sufferini(s of ibis
man then put an end loF — No, gentlemen;
ihe man conlioues in prison for aiic day*, and
is arterwardi by sn order exira-judicial, by an
order of (his goTeroor Mostyn, 8eD( iolo exile ;
which if it it law, any thing he thinks proper
to do will be law } and 1 must then agree with
Mr. Wright's juridical opinion, thai ibe power
of the goTemor can have no bounds in enmioa)
mailers. If be can justify this, be might as
well justify capital nunishmenla ; nnd if ne had
thought projier to hn«e ordered hiui lo imme-
diate exeeufiun, he wmild bare done an act lull
as justifiable, in my opinion aometbing mora
agreeable to bumanily; for he sends (bis man
to rot in a dungeon, Ibe place ordained for tba
vilest and mosl desperate malef actors, for ca-
piral oflrndera only, whether under ground or
not is immaterial, but it was gluomy, damp,
and uncomfortable ; it has all the horrors of
a duni^eon belonging to i( ; and there (his man
ia kept under n special eilrnordinary order,
irhich our witneBses, who were soldiers of Ihe
garrison, who were attendants at tbe place, tell
vou, were unprecedented } no food lulTered to
be admlnislered to him, his friends debarred
from seeing him, his wife and children denied
aCL'Mtias often as they apfitoscbed, and thia
ID consequence of ordeis which (heir bnmanily
shuddered a(, but which (hey dared not pre-
sume lo contradict. Singular and unexampled
as was this cruelly even in the government of
Minorca, which nas the peculiar characier of
having a despotism brloiigiiig to it unknown in
any other place upon the face of Ibis globe;
yet even itiere, though (hey may quote in-
stances to justify some part of their beha-
viour, they never can pretend that a man
ever was treated with the studied cireuiu-
slances of rigour and crnehy cnnlaioed in
these orders: I mean, tbai no such orders
ever issued out before. This, gentleme
Ihe lrea(men( Mr. Pabri^asbas undergone
this Mr, Mofityn must justify. He mtiat not
only justify (be removing this genlteman on
of ibe way of doing mischief, but he mm
say, that without hearing, without any iir«
ceeding, withaD( (he form of sentence, with
nut even so much as an inlimslioo of the
oSence with which he is charged, he has (
right (0 inllic( tbe greatest of all punlsbmenta
upon him. Tbis Mr. Mostyn must say : and
you are to conclude, from the eiceediiig good
character of Mr. Mostyn, that all ibis pro-
ceeded from tbe pure benevolence of bis heart,
from (he mas( upright and commendable of
all motives. Yuuarcinyiurjndgmentto pasa
nn approbation of denying a man, untried and
unconvicted, all food for six day* but biead and
water, of atrrppinij him of all comfort, nod of
159]
14 GEOBGE III.
Actimjbt False Imprttonment—
[160
^Kofvag bim eren the accommodatioo of « bed.
Yoa must pronounce ibAt there was nothing
improper, nothing unlawful, nothing inlvuman
ID leparatiug a man from bia wife during this
imprisonment, stripping htm of the comfort
of bis infant children, and then transporting
bim into a foreign country, without ipving bim
Ihe opportunity of providing for his voyage,
or receiving that small assistance which jrou
have been told bis wife and son were ready on
the spot to deliver to him. This you must
pronounce to be legal and justifiable, and to be
agreeable to humanity, to be necessarily inci-
dent to the office and duty of a governor of a
garrison. You are desired, admitting for a
moment that you can't justify the general in
this conduct; admitting that some form of
triftl, that calling a man to answer and signify -
iog what he was charged with were neces-
lutry forms to precede the infliction of any
punishment whatever ; (which admission will
be an affront to the judgment of the worthy
gentleman his secretary, who insists upou the
general's will being the law) but laying that
aside for a moment, it is said the governor's
conduct stands so circumstanced, that it is so
mitigated, that you can never find it consistent
with your duty to give any considerable da-
mages against him, at the complaint of this
man. And to brand him with the most danger-
ous of all names, you are told that he is a pa-
triot : that patriotism, however it may be in-
troduced here, and may be serviceable in a
commercial country, is of no use and benefit,
but of the highest danger, in the island of
Minorca ; and the love of a man's country,
which is called the first of virtues in other
countries, becomes a mark, a dangerous offence
in that country. At the instance therefore of
such a man as that, and against such a man
as Mr. Mostyn, you are told, you can give no
damages, for the great and the long imprison-
ment, for the cruel and afflicting injury done
him, in sending him into a foreign country
from his wife and family. You cannot do it,
because it is said Mr. Mostyn has been in an
error, and that the utmost extent of Mr. Mos-
tyn's crimes amounts only to that of error.
To support this, the opinion of the military
was asked, and the opinion of those wretched
men called lawyers, who have studied law in a
country where law is not permitted to reside, and
where the will of the governor is the only law.
Upon such authorities it is said Mr. Mostyn
could not hesitate. Clear as his judgment is,
be is mistaken ; he is misled by the first of
authorities: he certainly meant well. Gentle-
men, if 5Ir. Mostyn had offended against any
C'cular positive law of this country or even
irca, though clear to common understand-
ings, ]^et that defence mi^ht be open to him ;
but it is not open to him m this case : for he
has offended against the law of humanity,
impresaed upon every good mind (no man
that feels it can ever te mistaken), and he has
offended against the first principles of justice.
But it is said, he only erred in sending a man
to a dungeon, that probably might kill htos ;
out of error too, ^e issues out orders to restrict
him to bread and water for bis sustenance ; out
of error too, he prohibited the access of hia
wife and children ; out of error, he banishad
him into a foreign country, stript of his pro-
perty, and all the comfort ne could besupposed
to have in his banishment, not suffered to take
that small provision wliieh his family had
made for him; all these errors are incident
— To whom r To the governor of Minorca. I
trust by your verdict that you will never sufiar
a man who has acted this part, to call it bo**
manity, and go back to Minorca justified bj
your verdict, in saying, ' I committed theaa
mistakes, but they were all mistakes of tbo
heart' I am sure you will not give him the
sanction and autbonty of your verdict. But
if these argimients prevail, you must do it ;
you must give the plaintiff small damaffetp
merely because the defendant is mistafcca*
Governor Mostyn, bred too in England, lately
gone over to that coimtry, does not reeoUeci
that it is necessary that a man, before be la
punished, must be tried: you are to call that
an error too. I do conceive, the lowest wretoii
that walks the streets of London, is incapable
of falling into that error : it most be an error
produced by the place ; it must be that veiY
intoxication and ornnkennesa of power whica
you ought, by your verdict, to correct. 1 1 is in- •
possible that any Englishman, or any dmui biei
in a civilized country, could fall into such an
error. And give me leave here to remark on
one part of the case. Gentlemen are brooght to
tell you of reports conveyed to the goyemor.
If Mr. Wright reported faithfully what be was
authorized to report, the governor had little'la
build upon. Another gentleman adds, that
there was a report of somebody ; and it is aaid
it may justifjr the governor as a report. Near
did they consider now the governor is to hn
justified by a report? Does a report justify a
man in proceeding to the very extremity of
punbhment instantly, without trial or exami-
nation F Does not every observation that can
possibly be made turn against general Mostya ^
If you pronounce a verdict for him, roust net
you give a sanction to tbst horrible and danger-
ous doctrine here advanced in his support f
Are not you called upon then by every consi-'
deration that is dear to you, to give great and
exemplary damages in tliis cause ? If ever ez-
aniple required it, it does in this. If ever the
suffering of a roan required it, it does in tbia ;
for never was any man more clearly and on-
justifiably wronged and injured. II yon send •
Mr. Fabrigas, if he has courage to return tft
the island, with a verdict of a few hundred
pounds, to give triumph to a man whose re-
venue is seven or eight thousand pounds a-year»
who does not regard what such a man as tbia
recovers ; then the despicable doctrine of ar«
bitrary power that the governor was ko fond of,'
and thought so well established in this ialand|*
will never again be disturbed. Is it not ea^-
sential to the ycry safety of the islandy thai .
mi
Fabrtgas xh Mostytu
A. D. 177S.
[162
the inbaliitaiits may be asiured that tbey are
pntecied from aocb a power, that tbey shall
■ever be told that io a court of justice such a
|e*er was ever insisted upon, and that the
ivy^ve only a few hundred |K>andsdaniaf2^,
MI mark that they did uot bear in their minds
my great disapprobation of it ?
bo the other hand, it is of no great coiise-
fMQce whether Mr. Mostyn ever returns to
llat country again. It is my, and I am sure
it is \ our wiah» that be may never be permitted
Is rtiuni. 1 wish he may never see the face
sf Mr. Fabri^as af^ain. 1 wish he may never
Me the face of Mr. Fabrigas a^ain m that
iiUnd. But it is of the greatest concern to the
peace and happiness of that island, that they
aic nfely protected from such outrages, from
faeh raropaat violence and capricious exercise
■f tyranny and despotism ; that they shall
■crer be disturbed again by such exertion of
■Qtborilv, much less that it shall ever be ac-
faswlcfujied as the claim of the governor of the
Uand ; but that they may quietly enjo^ those
rights that as natural-born subjects ot Great
Britun they are entitled to, and which the na-
lisaal fi^th is pledged to make good to them.
This will be the advantage that will follow the
giving ample, considerable, and exemplary
bmgCB to the plaintiff; damages that 1 must
laj in this cause are called for from the very
astare of the cause itself: for if there was not
any weightier consideration in it than for the
nferinn of the man, the damages most swell
high indeed ; but, added to that, you will pro-
dsee this faappy effect, that Minorca, which is
■iilo be a precarious possession, will for ever
he a permanent and secure possession to the
~ of Great Britain. I much fear, if this
receives countenance, it will be inse-
isdeed ; and much as I love the trade and
of this kingdom, I protest as a man
tf ftding, great and valuable as they are, 1
vsnld not consent that they should be pur-
chased, I cannot consent that they should be
puKTved, at the expence of the most solemn
i%hls of societv.
Mr. Jdlit. dfould. Gentlemen of the jury,
Anthony Fabrigas is plaintiff, and John Mos-
lem, esq. is the defendant. This, gentlemen,
is an action of trespass and false imprisonment,
en which the plaintiff declares in two counts.
The first is, that the defendant upon such a
day made an assault upon ami imprisoned the
plaintiff, without any reasonable or probable
eaase, against the laws of this kingdom, and
csmpelled him to depart from Minorca, where
ht was theredwellingand resident ; and carried
•r caused him to be carried from thence to Car-
Ika^ena, in the dominions of the kine of 8|min,
aga-Dst the plaintiff ^s will, whereby ne was put
to great expence and trouble, his goods were
Vtoled and lost, his family brouj^nt to {;reat
vaaiand distress, and he was depnved of their
vmiort. That is the first count. The second
a, the general cbarffe of false imprisonment,
»uhout alledging tnese circumstances. To
dn the defendant has pleaded two pleas.
VtiL. XX.
In the first place, the general issue, that he
is not {Jfuilty.
la the second place, he says, he is governor
of the island of Minorca, afii) that he was in-
trusted with ali the powers, privileges, and au-
thorises, civil and military, bflonginaf and re-
latint; to the government of the baiH island in
parts lieyond the seas. Then he states, that ilie
plaintiff was ffuilty of a riot and disturbance of
the peace, order, and government of the islnud,
and was endeavouring to create and mifn a
mutiny and sedition amongst the inhubitants of
the said islaml, in breach of tlieueare, in viola-
tion of the laws, and ia subversion of all order
and government ; whereupon tlie dc-fendant, in
order to preserve the pence and government of
the island, was obliged, and did then ajid there
order the plaintiff to be banished the said island,
and to leave and quit the island. And in order
to carry (his into execution, and to send him
from and out of the island, he did (then come
the words of form) gently lay hands upon him
for that purpose; and accordingly did cause
him to be kept in prison for a reasonable siiace
of time, until he could send him out of the
island ; and then at length he did send him on
board a vessel from the said island to Cartha-
gena in Spain, as it was lawful for him to do.
The plaintiff has said in answer to this, that
he did it of his own wrontr, and without any such
cause as he has alledged in' his justification.
Now whether this justification is good in lunnt
of law or not, is a matter, gentlemen, that £
shall not enter into upon this occasion. For it
seems to me, that if what has been laid down
by the gentlemen upon the part of the defen-
dant is well founded m law, tbey ought to have
pleaded that matter to the justification of the
court. But they have not so done, but have
pleaded a justification, which is denied by the
plaintiff; and that issue coming here by the
king's commission of Nisi Prius to be tried by
you and Itefore me, we must therefore ^ee
whether he has made out that justification or
not. And you will please to recollect he says
in it, that the plaintiff was guilty of a riot and
disorder, and did endeavour to excite and stir
up mutiny and so forth in the island. Thus
much I think one may say, that where a con-
quest is made of a Christian country (there ia
some strange doctrine relative to infidel coun-
tries, as if mfidels had no laws to be governed
by, that I meddle not with; but as far as re-
lates to the conquest of a Christian couuiry,)
certainly it is said, that until the crown does
promulge laws among them, they are to be
governed by their ancient laws. ludeeil, com-
mon sense speaks it, because otherwise they
would have no laws nor government among
them. However, thus far may be said, to be
sure, under such a constitution in which we
live, that at least natural equity must lie the
rule, if there is a |M)wer that is not circum-
scribed by clear, positive, and precise rules.
Yet both natural justice and equity are the
frinciples that ought to Gfnvern sucli a trust,
f any one was to write or speak upon it, it is
31
163]
U GEORGE HI.
Action for False Impruonment-^
[164
impossible bat they must lay down that propo-
sition. Then that will be a consideration for
you to try upon this occasion ; consideriofi^ this
distiDction, that we are not trying a cause now
that does happen within the compass of this
island, but we are trying a fact and a proceed-
ing that happened in a garrison beyond the
•eas, a place possessed by the crown of
Great BriUin for the general benefit of this
country and of its commerce.
In order to make out the plaintiff's case, in
the first place they hate called Basil Cunning-
bam, who was Serjeant- major in the soyal
artillery at Minorca in 1771. He says, that
the plamtiff was there at that time (it is aj^reed
upon all hands that he is a natire of the island
ef Minoroa.) When the plaintiff was brought
into prison, an order was giren out to put three
additional men upon the £[uard to do duty o? er
the prisoner Fabrigas : this was S4 hours afler
be had been in custody. The prison was called
N* 1, and is a prison where those charged
with or guilty of capital crimes or desertion are
general^ put. fle was brought there by a
part^ of soldiers, and the witness thinks hand-
cufied. It was afterwards admitted that he
was. He was confined there four or fi?e days.
The centioels informed the witness, that they
had orders that be should bare no conversation
with any but the prevost-marshal, and that was
put into the general orders : in fact, that no one
did Tisit him, as he knew of. The provost-
marshal has the custody of persons accused of
capital crimes, and keeps the key of the prison.
He says, that the plaintiff lived like a gentle-
man in the island. He says that he the wit-
ness was at SL Phillip's, and that the plaintiff
was not tried for any crime. This witness is
cross-examined, and says he has seen the
plaintiff at different times for eight or nine
years : he never heard but that be was a quiet
inoffensive subject: the plaintiff lived in St.
Phillip's, and was imprisoned in St. Phillip's
castle. This witness was there before Mr.
Mostyn became the goTernor: Mr. Johnston
was the governor when the witness came first
to that island.
James Tweedy.— He was a corporal in the
toyal artillery in 1771, and was seijeant of the
guard ; and in the middle of September the
plaintiff was delivereil a prisoner by the soldiers
of the 61st regiment. He says he was in prison
in N* 1 ; that there were orders from the ad-
jutant-lieutenant not to let any one converse
with him; he heard the adjutant read it : the
adjutant's duty is to deliver the orders of the
commander iji^chief. To relieve us from any
farther examination relative to that, it was ad-
mitted by my brother Davv that it was done
by the defendant's order, 'fhen a book is pro-
duced to you, and the title of it is, <* Orders
delivered to the troop\i in Minorca for the year
t771." '• Sept. 15, 1771. In order to relieve
the main guanl at St. Phillip's, which now
mounts a centinel extraordinary upon Anthony
fubrigas, confined in prison N** 1, general •
Mostyn orders, that three men be added to the I
artillery-guard in the Castle -souare, as they
are most contiguous, and that duty taken by
them. The centinel must he post^ night and
day, and is to suffer no person whatever to ap«
proach the grate in the door of the said prison^
either to look in or have any communication
with the prisoner, the provost-marshal ex-
cepted, who is constantly to keep the key in
hb possession." Then the witness goe% on,
and says the plaintiff's wife and two children
applied to see the plaintiff; that they were not
permitted to come nearer than 30 yards of the
C risen ; that the plaintiff lay upon boards ; he
ad no bed : his wife brought bedding, but was
not permitted to carry it to him. He says the
Sard was sure to be troubled if they bad suf-
ed any one to come to him, if they had been
guilty of a breach of the order. lie subsisted
upon bread and water : that when persons are
confined for capital offences, they have the
provisions of the island, bread and lieef, bron^bt
them. He savs that no oue attempted Co bnng
any to the plaintiff, because the onler was so
strict There was an air- hole at the top of the
prison ; a centinel was placed to keep any per-
son from approaching it ; and says that was
not done in any instance before, even of de-
serters. He says the plaintiff bad a wife and
five children. He never heard him speak dis-
respectfully of the governor, only he complained
whilst in prison of his sufferings.
William Johns was garrison-gunner at Mi*
norca in 177 1. He had been there nine vean.
He knew the plaintiff, who lived genteelly, ai
much so as any one in St. Phillip's. He says
the plaiutiff was brought to prison by a file of
men. Then he was flying on about hand*
cuffing, and so on, which the defendant's comi*
sel admitted, as described by the last witness ;
but he was not kept hand-cuffed in prison. Rft
says the prison is a ground -floor, and is ael
apart for capital offenders. The first day he
was in prison, his son, a lad of fifteen, came to
see him, and had provisions in a basket. He
desired the men upon duty to let him carry
them to his father, and they refused htm.
You see, gentlemen, it is owing to those strict
orders, that no man was to have access to
him.
John Craig is a matross. He says he wtt
at Minorca in 1771. He had lieeo there nino
years. He knew the plaintiff to be in very
good circumstances ; that is, he was so reck*
oned by people in the island. This witness
says, that he did duty upon him when he wac
in prison, and none were admitted to see him :
that his wife and child were refused. Ho
says, that after five or six days coiifinement,
the witness was at the quay, and saw him piil
on hoard a vessel that was under sail. Ho
says, this was done between three and four id
the morning. He says his wife and child
came down then to speak to him, but the ceo-
tioel would not let them come near him, nor
let the witness speak to him, though he wanted
bu to do. Then it is admitted that he was ba-
liibhed, hy Mr. Mostyn'a order, to ft^paia foe
Vahigm v. Mosiyn.
^mSySTh* Odlerml him to be taodeil ol Car-
&•(■»«, knil it w«<: SI) duDp.
Cflloncl James Bi<lu]|ili «ay», lie has licrn al
MiMrokt that he knew (lie plaintiff in ,lune
lltt. He ■laid there, I llimk, lill the year
ini. He Myi the iiUitiliS' appetnil tu him
IS mK of the nhal he call) the aecoml tori of
fafle: be was reputed to hare some houses
W lincyutls; he had ■ falher Uring. He
Xlh«t Ite nas oot receired as one iif the
Be, htu u s trenlleinan. lie aays, " 1
■kaoM call him a kiiid ul' a Keolleinao farmer."
]| na kaid \ty ihe couDBel, that the Dohleate
rfjirthemU all the h'enlry ; but ujjod my
■donf tka witnew, he lells you, " No : Ihey
■ike • very ooniidcrable iliatiactioo or the
lagbtr MBil niferiar oobtesse ;" lo that he it
•Cat ji«iu taty call in Bn^^tgiiid \a ibe litfht uf
tW tiu4diing class of men. Ue says, that as
br as be nfatcrred, he hehnved very well : atid
nai K* Ihia i;Milleinan speaks frum 1763 lo
Uf 1, lltAI be liehareil tery well, and had a
•By (mhI characler. lie says, that he oOeo
tmthyt^ him to gei wine and uther things,
■aJ be dispsli-'hed his commiiision very well.
Be Mys be |irinuiutlly kept company at Cita-
4i^ with • iloa Vigo and don Saochio, who
»*n l>o of (he 6rsl rank there (lliat is I lliink,
thicapiul of ihe Uland ;) that he always be-
Liimil. K<H era or of ihe itland of Minorca, and
Im a rc|[unetil of draguuns. This is tbe evi-
teat IB (upporl orihiKaclLOD by tbe iilainliiT.
ffhy Ibni, on behalf of the JefeDdaot, they
«di you thai tbry shall make out Ibis jusliG-
i«as ; tbat they shall Hhew lo you iba[ ihi«
•■Whated in a very lorbuleut and disorderly
-«< iHtty i that he behaied wiib auch ear-
tsi^M, bikI id such a mauaei', under such
:-..^>l«tice<, as leaded tu incite and tu rai«e
' idUatu And certainly, gentlemPQ, if that
' ikt ama, it is ■ mailer of rery serious and
~-- ■untmia oonoerii indeed. For the go'erDor
■■• s fnrtaon, wtllioal a poiBibihty nT callinif
< BMber armeil lorce to auppreni it, '
itrs, it a» iiHurreciion should be
ui bvfi* siDDngsl thrm, it is In
my fpr*^ muineot aDil irapurtaiice. For a
fmw inlrastnl in no high aud important a
MMMB. u»d of auch a delicate sod lichlisb «uri,
« lb* (rnicrnnienl of ihe island, the governor
^amli be extremely vigilant tu auppiess the
l« Nmla «r mutiny and acdilion. This they
A. D. 1773.
[166
« Mcila «C mutiny and acdilio
* Ibn aliall be Blile to atieiv y.
A^, a we shall nol be able Id
Bui, I
strictly and duly, accurdiiig to the
- >T it> whkb it ii pleaded ; vet, say they, we
' <ii< by ancb dfcnmaiances before you, ahew-
at thM the itmcral behaviour of the plaintifl
■V ni Ibai bind, aad of that coinptexion, thai
1 wifl weigb witliyou by no means In give
b|c JsttUfn. Tnis is what I think was
)nny noeb tbe anbatanee of what the gen<
4m» ba* D imalad npou by way of opening
Wb/ ibM, in tbe KM place, though ii
read at Ihe concltiilon of ihe parole ei
may remind you ol the several matters in writ'
ing Ibat have been read ; and I Ihiak it would
be but mis-spending your time tor me to read
(hem ai large over again to you. For when I
have so dine, 1 am sure 1 shall not be able lo
do it with more ditlinclness thnn the iu|>eniaua
officer under me has done ; and when I have
finished, Ihey would just as mnch be out of
your memory as Ihey are now. But you will
remember perfeclly the nature of the pro-
ceedings. I purpoK to collect them ds well
as I can intu a fncmi ; to bring the pith of ibem
as well ss I can to you. The true ground uf
the dispute was this : This Fabrigas the plain-
litf wanted, as you understand, the advantage
of an order of hia late majasly in council, in
the year IT.'i'i. by which, keeping urdtr the
afforntian, nut exceeding it, but keeping under
il, every one was to have ■ right of selling
wines ; so as he did not exceed the affbratiou.
Really, genileinen, an exceeding good plan
this is ; and that is, a tegulatiou of prices ta
keep people from impuiinK In the musi iinmo-
derate manner on Ibe inhabitants. Very likely,
a system of something of tbe like sort would
not be improper, but be of very considerable
uae even in this metropolis, for what 1 know.
But then it seems that this order lasted ooly
from theyear 1752, during the government of
general Blakeney. When general Johnston
succeeded general Blakeney as governor of
this island, he thought proper to make an al-
teralion in that order ; and tbe substance of
the alleralioD which he made was, Ibat for
the future it should not be in Ihe suburbs of
departments— lour besides ihia ariaval, as it
is called, of St. Phillip's) ; and that lur llie
future it shall not be sold promiscuously by
every une when Ihe atforalion was made,
but that for the future Ihe lour wards of ths
arravsl of St. Phithp's should draw lots, and so
take it in auccesiion ; I suppose, sell one aller
anollier till ibe wine is disposed of. And it dues
seem lo me by the evidence which has been
given by one of the wiinessei, which you will
ler than when sold belter skelter and promis-
cuously. Aud this regulation was pursued with
anme advantage. Then you see the plaiutiff
wanted to go back to ihe first order of 1753,
wbicbistheorder of ibekiiig incouucd. From
ibence vou see all ihia bustness sprung, and
from Allimundo's selling wine. That is one
grievance that was complained of, and which
seemed to be pretty material, 1 contest, as it
strikes me; because I recoiled, thai by one of
the orders It ii expressly forbid that ihe oScen
or judges, or any of them, should have any in-
termeddling with trade or tratBc. Now the
complaint nf the plainiiffngainsiibis Allimundn
is, that he who had tbe check npon alt tha
rest, this mustastaph, buys ureal i^iianliiies of
grapes, and makra a vast quantity of wine him-
self. So while be kept the othen under check,
MT] M GEORGE III.
be tells his own wine. Therefore that is ano-
tiier tliinji to lie considered of. Therefore you
aeo there are ivjieaied |»etilion8 upon this o<*ca-
aioii. And I will only say this : that to be sure
it inma out at ^enj^tti to hate been a mistake in
Mr. Wright'a evidencf-, that that numhfr of
160 |*era(Mis that were nienlionc<l by the defen-
dant's counsel as people by him to be produced
to back bis petition, or people with which hta
petition should lie backed, that be considered
as a mob, because he takes it down in writing"
himself: and when it comes to be* read, it docs
Appear that the ex|>re88i(in of the plaintiff was,
that he would bring 150 people with him,
dealers in wine and grapes, in order to »ihew
that his petition was exceedingly reasonable,
and would be agreeable to tiiem. Now that
you see is the substance of this writing, toge-
ther with the several |>articulars, orders, and
proceedings, which 1 dare say you have in
ymir memory. 1 must obsenre this, to be sure,
these gentlemen are not bred in the train of the
law, and in a course of legal proceedings; but
general Mosty n seems to me to be as inquisitive
as he possibly can to find out the bottom (»f this
thing. It does not appear from the witnesses
that the general had the least sdf- interest to
serve in this business of his own, no profit or
advantage to himself; there is no evidence
whatever, not a spark of that sort that appears.
He sends to Dr. Oliver and Dr. Markadal to
nake enquiry into this matter. He sends to
them, and desires to know their opinion. He
convokes together a council of the field-officers :
and then they are of opinion upon the whole of
this business, (whether right or wrong is not to
the present question, but it strikes me upon
this evidence, that this general Mosty n noes
seem to me to be extremely solicitous and de-
sirous to inform himself as well as he can, what
is to be done upon the occasion ;) and at length
it ends in a general answer, sucli as it was, that
it would be very right to banish this man. Now
they proceed to call several witnesses.
James Wright says, he resided in Minorca
from January 1771 to the middle of the year
1773, as secretary to the defendant Mr. Mosty n
the governor. He tells you that this island is
divided into four districts, exclusive of the ar-
raval of St. Phillip's, which the witness alwaya
understood to be separate and distinct from the
others, and under the immediate order of the
governor (you will observe, that it is in that
district that the fortification stands) : so, says
he, that no magistrate of Mali on could go there
Action Jor False Imprisonment^^
[1«8
the court of the chief justice criminal.— I would
ask a question of Mr. Wright. Has this justice
criminal a commission to try offences P
Wright. He has the hing*s ' commission
to try and to hear all causes when they cimie
before him. He bnngs them to the governor,
who signs them ; and till the governor has
signed them, they are not valid.
Q. But when the covernor has once signed
them, ban this gentleman thejuriFdictiontotry
offenders?— /I. The assesseur criminal, and the
officer fiscal, who sits as judge with him, bring
their opinion to the governor, who hears and
api^rovea of their opinion, and signa it. .
Do3«ou make any distinction beiween one part
of the island and another P— The arraval oi Bt.
Phillip's is so exempt from all kind of jnris-
diction (at least was, when I was there), that it
is a rule in the island, that if any biidy dies,
comes by their death by any accident, drowned
and fished up, that the criminal assessenr,
with I believe the fiscal and his officers, goes
to the dead body. They take the thumb, and
ssy , Who killed yon f This is a form they go
through by way of bringing about a kind ef
inquisition taken by a coroner. Whenever they
bare occasion to go there, they ask the go*
vemor leave, if i^ithin the arraval ; and there
is a particular instance of a soldier's wife beinff
killed by her hnsband.
Suppose a person is guilty of a murder within
the arraval, whom is he tried by ?— -The lasea*
seur criminal goes and takes inqnisition. That
be does not do, till he,has the governor's leave.
Suppose a person is murdered, and the mur-
derer IS found out, to be sure you don't lei
the murderer escape with impunity ?— Ne.
Now let me ask you, wiihin the arraval hy
whom is he tried? — ^The governor appoints,
but he generally appoints the assesseur.
Then the governor does not try him him**
self? — He never tries any thing of the sort*
Then be deputes somebody to try himP—
Yes.
Suppose in lesser offences, of thef\ oiir riot,
does he not appoint other people?— In smaft
offences, the mustastaph.
Mr. Just. Gould. Gentlemen, there was
in consequence of this affair, a proclamation,
that no memorial, unless tor mercy, could ho
presented, unless it was first signed by an ad*
vocate. adroiited in their courts. He saj^s that
the king in council issues u|K>n application,
alterations, which are registered in the court of
royal government ; which inclmies, as 1 under-
aSi* • B I **i ^^1 ** a*
to exercise any function, withnut leave first ob- stand him, both the civil and the criminal jn-
tained from the governor. The whole is)»nd, risdiction. He says that the defendant hein|f
be says, is goemed by the Sp.uiish laws, sub- much teozed by the plaiiitifl', by repeated ap-
2 ^ A.'L I :^.i t.. *u„— . -. u..* -...* -.1. _i: .:. i: Tl^.i %mL «v.:.^i.. «1 : uL*
iect to be varied by the t;overiior ; hut not s*. ob-
ject to that variation in re spert to meum and
ftttfffi of property, but as fo the internal police
of the island. And he teJIs yon, that his pro-
clamation, with a iiennliy annexed, is of such
force, that where the penalty is annexed, if
it is broken, the party is subject to it, and u
iSaUe to be imprisoned for non-payment He
9«y9 tbil 1b9 putjT if fcised aod brought into
plications, directed Mr. Wright to enquire what
aort of a man he was. He tells vou, that the
plaintiff 'k father h^s some nmafl vineyards;
that the plniiitiflf is a lover of politics ; that he
spends five days in seven in talking of |iolitics ;
that at that time he believes the plaintiff had no
property at all. Then he speaks as to the cha«
racter of Mr. Mosiyn. It seems net to be dia-/
puted at kaat but lie is an officeri and a H&an of
^ahrigas v. Motlt/«.
A. D. 17T3.
[ITO
J U fiDssible: no one ex-
r Feeliiigt, antl liis conilucl in
inaniier. Ttit-n tliis ffCH (le-
ws CDCs ihrougli llie whole detiit of thcue
^«tl wrilittgB wbkH liaTif liven read to jimi,
•Wi,H I nM Wtiire, I •.liall not tske i>|.
jMrUcne, f«r llie rfasuoB I hute ■Ireaily ^rea
am rrpMiltni; oier ajraio, tor you tiive
thrni kII read. He tells you, otnongat
^dun^, tb«l tlie bliabitaaU of (lie urrnvil
■H • vetiliaft to Mr. Hoatyn (ha( Ihe r'^uiila-
a«miic1tt continue, and dot be alKted, as Hie
jtitdfrdraiml. He iHlu you. that tl.e plain-
•ffbinBi{be«a willi iWceDernl's aiiMu-camp,
M Miirss inrt him. and civilly desired him to
IMdOdt irb«l h« trished; that il should be
<ar. lie says there nas one Mr. Vedall that
antnmnml^rpreitr. and spriest, ooaSe^uy,
IMjoinrd witb Mr. Wcigh( to press the pFaiD'
(f la (a bame >Dd niind his affairs, and no(
tihiae trimaetf >tito (ruiible. Then (his gen-
Ibwa cirears, that Mr. Vedall raid rrom the
ftaixHT •■ iol*rjireter, thnt he would come
tilii 110 Htm tn back his petition, or with a
pMM backed viih Hi} m«n. This ^nlle-
mniaia, be tiii'terstuod by thatamob. 1 i^hall
pvany stale t» you, us I hare already hinted
(•pa, the niivtaVe in ibal respect. He saya
tM* wtm a IvDiT <i<>n*ergBlioD by Vedall wilb
iw ^utiff, aa bis interiirpter, to desire him to
- .1: he Mill n;t<eBt<-d the tame. Then be
.11 iliat he inlbrined ihe piiFrn'ir, ihal there
■ |«i[ile ibut he undvratood were tn ac-
-iiiif tbis man as a mob the next day.
>' ilie x^neral seat Tor the officer* to nirel
. llie neit tnoraiiiif. They Bccordln<;ly
V. A large Dumber of people were ex-
."id, but only four people nt' the inferior
'-r W«wgbt a petiliun. They were dis-
^'^ to go bome peaceably. Thai Ihe result
-M nbole «aa, that the plainlitT was ba-
.^ fnM) tlie island. Ue says, Ilial Ihe de-
-tMl aent him the iritnrsi lo the chief jus-
tiMd*il and criminal, who are both Mioor-
•W, to aak what wai the Kovenior's power
■ Ms (!•»? They ae lit word back, ibat his
pal J rxiOHli'd nier the man in any shape he
jlrii ; and if he chose to banish him, he
tufbt i tbvy would aniner It with their ean.
Be carried ilur answer to llie defetidanl; tint
Wnrr, doubting: Ititnself of the law, the as-
ivanr eiail deUnred him an onler In wriliog;,
vfcwh wai dated in I.'>90; aod that imparled,
Ihll thoolfh il was tery Gt Ibr llie goffrnifr to
■k (b* adne« of Ihe asseaaeura ciiil, yet that
iS DDt by any meana bound lo
Dt deci^ite, as in mat-
lys, that die assesseur
. leni his officer, which
bia lipstalf, to the ^orernor, lo ap-
Ihe plaiatilf, who accordingly was
r« k««t in priuin about Arc days, and
teiafpnipOTty. ili
Tben ha idb you, upon
Ata. tbal AUtmiiiidn uiakcs wine and sells it in
|l«a, bnl ox, a* be hclievea, in retail. He
>p thai (be Hhtofiutu laofiiage ia very bad
Spanish. Then he is desired lo look al the
pH|ier; (ar he had a paper, wiih which, in
Kiting; bis e*id<9nce, be rH'reslied his memory :
biit upon hrokini; lo (he words iu ihst p»ier
relative to Ibe 160 men, the words that Iw baa
" I1ie Earns day Mr. Fubi igas came liir an
■nsiver lo hie |>el<tiOD, be told the governor's
cpcretary, iliat he should Come the next day
with a pi-lition nf people concerned in grapra
and wine, which they would eign and vnoie
witb ihemselies, to the noraber^ 150."
Sotlint you see this gentleman aayK, as I
ajiprehend him, { I dou'l know whether this
pBpei' that be has now producnl ia llie original
paper that he set down the minutes on Ibr re-
cnjleclioii and fur remembrance al the lime ; I
dnu'i know whe'hvr lhai is so or not — how.
erer, it may be a cojiy of it) he said he set il
down upon loose piecea of paper at first. If
thai be the case, tbc strong probability ia, that
thia entry that I bare read (ii you must hsie
been set down rei'eully alter the convenalJon.
You see the worls arc, that it was to be 150
people concerned in graiies and winn. Then
he tells vou, that upon the lllh the governor
and the neld-olBccTs met, and, as you heard
upon his original examination- receited a me-
niorlal by four men signed by blank person*
— you see the nnmber it letl blank. Thia
gentleman say« he cannot recollect ihe numltr.
He says be was couiilintc them, but be believes
there were more than 40, between 41 and 47,
he can't be exact ; but Ihe number of persons
liy whom it la siijned is in thia copy blank.
The purport uf llii> memorial is la desire that
ihe old practice may be pursued. To which
he answered by the officers, ihsl Ihcy should
return home, and behave as good and j>eacea-
ble subjects Iu bis majealy ought lo do. I
have anticipated il. I see he says, according
to hia memory, there were from 41 lo 47 aig-
natnres. There were a greut many marks,
yoii understand, lo this petition delirered by
the four men. He can't say be counted it
through, and can't affirm what Ihe number
was. He nat further examined ; and he aava,
that upon strict enquiry it did nnt appear ifiat
abore one in ten supported ibe plaintilTs de-
sire ; he ia sure he allows a greater pro|<ortioit
than the truth was : and he says he informed
Ihe defend ant Mr. Mostvn of ihat. Re made
the enquiry at ibe defendant's request, in order
to discover the sense uf the inhabitants-
John Pleydfll, ard-du-camp to the govenim',
says, that on the 9th of September ITTl.tbe
plaintiff asked btm to »ee the goremor. He
told him if he had any tbint^ fur the governor,
he would deliver it. AIit a liiile hetitaiion
the plainlifrdehvered a niemi.iial, and desired
bim to tell the governor he should come die
next day accompanied by 300 or iiO Inhabi-
tants of SI. Phillip's, lie aaya he carried the
memmial lo the gnrernor, and told tiiin wbal
the plaintiff bad said ; ujHin nhich he says,
that the governor that day tent to the com*
maniling ofiicert «f tba corps to toeet at tfaa
171J
U GEORGE III.
Action Jir False ImprisonmerU'^
im
ffoveraor'fi the next mdrning, to see bow he
thoalil receive the |)latntiff, and the fieople that
were to come with him. Now here you see in
the efidence giren by this Mr. Pleydell, there
is not that ezplaoatioo of the nature of the end
and desijp of these 200 or 250 people being to
come with him, as there is m tnat memo-
randum that Mr. Wright produced : for this is
in general said 300 or 250 people. And I can't
help remarking to you, that it seemed to make
an impression on the governor, and to alarm
him : for it was upon his delivering this mes-
sage to him that Pleydell says he did desire
the 6eld and commanding officers of the corps
to assemble the next morning, to see how be
should receive the plaintiff and the people that
were to accompany him. But he says, in-
stead of the plaintiff and such a number of
people, four men came the nexk day and
Drought a memorial. He believes all the
commanding officers were there. He was told
by the governor that the sense of all the offi-
cers was, that the plaintiff should be taken up
as a daogen>us and seditious person : he says
be had consulted the Minorquin judges, and
their opinion was the same with the military
officers. He says this gentleman is an inha-
bitant of the arraval, just by the glacis of the
fort : and says that he kept his father's vine-
yard : and that the defendant, far from being
a tyrannical over- bearing man, is one of much
temper and humanity, and the witness served
under him the last war.
Upon his cross-examination, he understood
by the plaintiff's saying he should bring 200
or 250 men, that it was to enforce or give
weight to bis petition, to certify that that was
their opinion ; that is, that they concurred in
the plamtiff 's opinion : but, says he, so many
people coming together is au act in itself of a
tumultuous kmd. He says the people in ge-
-neral wished to have Mr. Johnston's regulation
continued. As to the memorial that was
brought by the four men, he did not read it,
and bad it not in his hand ; but by just the
superficial glance he had of it, be thinks there
might be 50 or 60 names to it.
Robert Hudson, fort* adjutant, says, that
upon the lOtb or 1 1th of September, tlie mns-
tastaph of St, Phillip's told him, that upon de-
livenng out a proclamation (though I ought
not to sum that up, for what this Allimundo
■aid is no sort of evidence) — but he says that
having received this intelligence (so far it is
material) he did give the governor an informa-
tion of it: the governor was then in Mahon.
He says, that iK'fore the plaintiff made this ob-
jection, he nerer heard any objections to Mr.
Johnston's regulation ; that it was to prevent
the wine from turning sour, by being sold in
that hurrying sort of way ; that great quanti-
ties of it produce fluxes and oUier diseases
among the garrison, for there are few cellars it
seems in the garrison. He says after this re-
gulation, in ser oral years experience, none of
the wine dkl tarn sour. Tmd Ihera was a-
f ucstMB that oocuicd to me to Hkf wj
^
the serving it out in this sparing manner did
not influence the price. They said, no, be-
cause the afforation fixed the pnoe that it could
not exceed it.
Colonel Patrick Mackellar says he knows
the plaintiff; he was called Red Toney: 1
suppose he has red hair. He says he bprs a
very bad character ; that he was a seditious,
troublesome, drunken, shuflUng fellow; that
he had many complaints against him from two
mustastaphs. He was in the island from 1736
to 1750, and again from May 1760 to last May.
He tells) you the arraval of St. Phillip's is sur-
rounded by a lime-wall on one side, and the
other side a ditch ; that the arraral is a royalty,
where the governor has a jg^ater power than
any where else ; that the judges can't inter-
fere but by the governor's consent. — That cor-
responds exactly with the explanation that Mr.
Wright gites. — He says, in other parts of the
island there are jurats, but in the royalty there
is only this mustastaph, who is appointed by
the governor or commander in chief, and is aft
pleasure displaced by him. He takes care of
weights, measures, and markets, and of all
wine and the expenditure of it, and settles
little disputes between the inhabitants in the
first instance. That the magistrates at Mahon
ut the afforation within tneir jurisdictions.
his mustastaph does not make any afforatkn
himself, but acquiesces under that of Mahon :
he only signifies the afforation that has been
made at Mahon. The Minorquinsare in ge-
neral governed by the Spanish laws. When
it serves their purpose, they plead the English
laws. Some are well affected to our country ;
some are not. He attended the governor once
or twice on account of the plaintiff; and he
says that the general opinion of all the offi-
cers was, that the plaintiff was a dangerous
person, and that it was proper to take him up
and bring him to punishment ; and were of
opinion to banish him. He says the defen-
dant is a good officer, a polite well-bred
man, that he carried liis command in the
genteelest manner, and is a person of great
humanity.
On his cross* examination he says, that b«
and the other field-officerb met by the deten-
ant's desure, to know what was their opinion
upon this business. Two of the judges of the
island thought it entirely in the governor's
breast to do as he pleased ; but there was no
trial. He does not recollect whether major
Norton was of that opinion : it was the opinion
of the majority. He was asked whether major
Rigby was of that opinion or not ? He says
he can't say how that was, but does not re-
member that any one officer dissented from
that opinion.
Then Edward Blakeney, secretary to the
Swernor of that name, is examined. He says
at nothing can be executed in the arraval of
St. Phillip's but by the goremor's permisskM-t
it is a loyahj ; be has the absolute gofcn^
He sava that gen. Blatai^ a^
' '1 the jm XTMba^
Fnbrigai V. Mostipu
3U tfiars into Suain or
1 time uf peace. He sayi
■u nfterwRrila liy a gr*al deal of inter-
n Ipflte tnrPD li> ihoae people 10 relurn.
y<t iliBt llie |iuwer ilsell trss oeier ills-
porJ, ■ml he look ii lo be baniletl down from
Ik Spaiiiarile, bj wliose laws, as jou obsene,
Ih IliiiurquiDi are goierned, nnd at their owd
n^ue«t. He «ii]rB the juilges have applied lo
Hw ■itnera for ibe goveruor's leare to execute
pBce—w ill llie arnTal. lie says llie lale
imt wnl four re^meols to relieve tbe irad|i«
nuaned liicre, (bq order of humanily, like liia
a^jnly)aiHl (olia*eall llie vri*eB[in<l chilitren
tnofltt Itoine: Lowever, a priest took a liking
1» vo* of the ^a\mg nomen, and wnulil not
Mrerherup. The Driest wns baiiiaheil ; Ibe
! of wbicl) waa, ibe girl vm de-
Bod tlie priest was brought back
(oin. lie gives lbe«e as three loaiances
ntrc pewtle were bHuiabed from tbe iiland.
H* M]r« tl»l iheee I'riart, two PraociECdug,
w«r*, •* he belieres, antireii, MinorijuiaH. This
* tbie parole etidence that i« siren on the
jKlaS tb« ilefendanl. I bave already slated
-'}oo Ibe cabsiance of all that written evi-
nce : joo baie heard ji, and jou are fully
•>ten of all the circamstances Bltcnding this
Kaw, geollemeD, ii is for your consideralinn,
ifcillirr tbe defendant, general Mostyn, has
afc (wt bi« juiliGcation ; whelher he has
ymt6 that tbe derendant was guilty ofa riul,
^itd * d»turbaoL-e, and that be emleaioured
"= 'wiU! and lo ilir up a tnutiuy and a sedition
- llie ;[arr>*OD. If that is the case, I should
-■^ae, gr'odflineu, tbe plainlilF will appear to
;«u a ncrwin of a vety dangerous disposi-
tM( •»■( I bat tome very strict methods must
hmiwijf to be taken in Buch a silualion, In
Mkllt pre*erTe the (farrison, and to preTent
MaMrrcction. If it is insinuated to the aol-
tm% tlwt they are abused by the officers under
Ik cnrcToor, by the gurernnr'a connivance,
* ky hit rcmimneiB; we will say, Ihougli he
Ui»o kind of iatereit in It, but by his gross
MBHKMgemonl, ibey nre oppressed and im-
*Bais|nHi;--»uppo*e«uoh a persuasion abould
WiafMeil into ihe people composing the gar-
nna, 1 think it i« lery clear, and I neeil not
•f ue M yan, lo abew wbal dnngertiui conie-
ytti-M may rMall from (hat. Then you
*fl eoMiler tiow this case stands in thai re-
dact. You (re thiit this pervon, afier several
f^n (» D«rw nvulalion liDvIng been made by
piiBui Johnnton) is for selling up a^ain and
mVnnc an old rri[iilBtiun made In 1752 i and
" ! orerail lO to do. Then the
ad was to be taken. It lain
ie|a reacind Ibis, as I ap-
*feaal dispute it lint that by
*^ - ■ his plea, he is
il and military
lod I presume,
leBuch an aller-
; the goferoor
4 with it. Then
.. D. 1778.
[!T*
Ibis person wants lo set that old buiiness oa
loot agaio ; and be does produce, (lor so I
must lake it from tbe writing which Ihal gen-
tleman hai produced) be does mean to shew l«
the governor, that there are a Tast nutnUer of
people of his sense in tbe affair. Tbetnislor-
lune of il U, however, thai Ibis is not expreasly
conveyed lo Ilia governor ; because, aecording
to the whole belief of Ibe ageni, ibougb ha
understood that it was meant lo give weight
to tbe petition, uot to proceed to direct vio-
lence; forwbati can find, that was notdirect-
ly explained lo general Moslyn. Now you
will consider u]ion this evidence, whether you
are satiified that ibis was such b behaviour in
plainiiff, as lo affiird a juit conclusion, Ihal
how
n that V
irup
and a mutiny in the garrison ;
tlier be meant no more than earnestly to presa
his suit, and le endeavour to obtain redreu
from what seemed lo bim to be a grievance.
If you shall see It in that latter light, lo b«
sure there is no ijueslion at all that he will bw
entitled to recover in ibis action. As for tha
damages, 1 sliall nut say a word upon that
matter, because it is yonr province to coniider
on il upon all the circuuuiances, Then thera
is another consideration, which will be a legal
CDDsideraiion : that supposing you should ha
of opinion that this was really a seditious helia*
vionr in this plaintiff, which yoa will consider
of, and also whether he acteJin such a manner
MS to siir op sedition, you will be pleased to
say, that when you brinjrin your verdict. Tbe
next thing is, thatsupposingyou seetheplaiu-
liff's conduct in that light as a mutinous pur-
pose, whether the defendant could be warranted
to proceed in that manner. That is, to be sore,
B matter of very great consequence. It is not
like persona in tbiseoantry, in England, where
no freeman shall be banished his country ;
which is carried to such an extent, that lord
Coke tells us, that it is not in tbe power of tbe
king to send a man against his will even to he
tbe lord- lieutenant of Ireland (1 don't lielieve
there are many genllemeu, thai would recoil
at Ibal); but it could not be done, because it
would be ail exile: you drive a man against
bis will out of his native country. Bui how-
ever, this iaa case you see in a coni]uere<t island,
in a ceded island. And certainty 1 should
conceive myself, that if in a garrison where
il is absolutely necessary to beep down all
these inulinuiis spirils, from the aj'parent rea-
son of danger, that il must certainly be law-
ful for the governor at IcasI to lav a man up in
prison that is turbulent. But I should doubt a
great deal myself ; il wdl beamalttr thilyou,
genllemeti, will have an opporlunily lo consider,
if you please, if you shall be of opinion that
the plainlilTs behaviour was sediliuus; and
tbiit IS the reason that I desire you to atlend to
that, and tell me, when you give in your ver-
dict. It would be carrying inalters lo a very
great length indeed, in my appreheuaon, lo
■ay, that yoa should exile and banish * man
from bto oativa aountry. I ctnool, litljog
m]
UGEOEGE ni.
AiAvmJijT Falu Jnipivotrnml'^
[176
here, and u at prevent adrited, thick that cm
in such a situattuu ibatcooM be ivamnUd. I
UDDOt think bnt tbat a perMD might bo ae>
cuied Biul confiued, in oriler to be brought to
trill, uid piMfierty puniahed for it. I lea**
il to ynu UDdcr them obterfatiooa, and yoo
will cooaider upon tite whole of it, what da~
mages you ahall please to give to the [iJaia-
tifT. As to the defeodanl, yoa hear the cha-
racter be bcara frum all the wlluesaea: a maii
of great humaDity, who haa tteeo guillj' of an I tot damage*
ioordinale ute ol* hia power, but sot wiLb a '' —
nalefukot, bad, aoil wicked detigo. To be
•ure, you will uot deal out Ibe dainagea witb
the aaine *ieir aa you would *gain>t a nuo
that acted clearly aud Jema'ttralily wilb ma-
lice, ll ia your profiuce, genllemen, to con
ndcT all the circumalMkcea, and to gire in your
Tetdict accord iugly.
The jury withdrew, and in abonl an honr
Kturueit, and ga*e in their ter<Jiet for llie plain-
tiff; with 3,000/. danrai(a,andalleailRafwit.
—And at the aarae time nid, that, in rbrir opi-
nion, the plaintiff was not guilty of mutiny or
icditioD, or acted in any way lending thereto.
FdKTHEB nOCEBDIMGS T
TUIB ClDSE.
The eouniel for Uie defendant, while the
jury withdrew to cnoBider ibeir verdict, tea-
dcred to the judge mbiDtM of a bill of excep-
tjona s and on tlie fourth day of Klichaelmaa-
term, the Coart of Comuion-PIeaa waa a»OTe<l
Iw a new trial.
The defendant'! counael made hia niotioD od
tvo grouuU.
First, far ezceu of damage* ; alledgingthal
iLe jury bad proceeded oo a inialalfe, liir they
bad found that ibe plaintiff was noi guilty nl
mutiny or sediliun ; whereoa he inuited it was
IDotl plain from the wrilien evidence, that the
tlaintiff had endeafuured ID make the garrison
elieve that be was their friend.
Secuodly, that a new trial oaght la be
granted, because Ibis actioa could not be niain-
taineil, as the Court had no juriadicliou.
The rule to ahew cause was, of course,
granted.
On the 3Slh of November, Mr. Juat. Gould
r«|)orled the evidence, which agreed with tlie
printed trial. On the 46lh, it wu tclemnly
Ugued on the Hrst otyedion of exceis uf da-
naKci, ilie Court uot permitting Iho defend-
ant's couoael lo urgue the nemud objection, as
ihey said il would be introducing a new mode
of practice, which might e*eatnally be preju-
dicial lo •ailor* ; aud ai the bill of exce|iliooa
went with Iho record to the court of Kiug'a-
beuch, tbat waa the proper court to daiermine
on it.
Lord Chief Jnitice De Grry delirered hii
opinion lu the following purpon.
I have always considered Ibia node of ap-
pHcation for a new IruU, as very aaluury to the
wtlor*. who may be injored hy mislako ; and
litawue to the jury, .»il reftim. Uwir enoii,
if they commit any, and is a happy subHitDlc
for the much more grievnni pnKvediug tbat
the common law baa directed. With regard
to the interposiiiun of the courts nf juiiice on
the quantum of damages, where the subject of
the luit ia contract, the Court hai an easy ml*
logo by in rectifying the mistakea uf the jury,
because there is a certain lest and ftaudard.
As liir instance, if a man ihoald bring an action
' " lOOf , and the jury should give
.,000/. uoiter the idea of in-
lereit, they would gu upon a mistaken prin-
certain the party could notnara
dfi,, .
injury adequate to that compruaa-
tiiin : the damage* would be excroaiTe, imd th*
Court would correct it. But in peraonal
wrongs, it is much mure difficult lo draw a
line, I do not go so far aa lo say, ihat in per-
sonal wronga the Court will never iuierpoafc
even upoo the article of escemiTc damage*, if
they are oulrageuua, and appear so to ilie Court;
that is, aa my brother Gould expressed it, if it
apprari, iu giving the duniages, that the jury
did uiil act will) deliberation, but with paasioii,
partiality, or corruption. As <br ioatauce, if
tiTO ordinary men should quarrel at an al*>
boi»e, and one should give Ihe other a fillip
opon the nose, and 1,(X)0/. ahotild be gina
for dainageti, which is ten times more than
bolh the parlies are worth, such damages
iroiild be evidence that the jury had not acui
wiih the deliberaiion Ihat the administratioii of
justice require*. It i* a peraonal tori, bolthc-
damage* are excessive. There are other cir^
Gumatances, where lite Conrt, even upon ezcea*
•i*e damages, might interpose: and I think
the couotel lor governor Hoslyn have verj
wisely cndearourM to ground ihemaelvea tinoK
such a principle ID this cause; which is, tut
the jury, in aaaeasin^ the compenialion fbr tha
injury, have proceeded on a mistake. It it
possible tlml to many instances that mistake
may arise from the direction of the Court ; fbr
the Court may perhaps direct Ihe jury to at
tend to a circumstauce, that in point of law ia
not prnved, or is not Ihe subject-matter for their
coosider.ll lull : or il is possible that Ihe jury
may so miilake the evidence, aa lo believe Ihe
fact to betme, when it isnotso: then it cornea
to he a progier motion fir a new tnal, becauae
the verdict is contrary to evidence. Or tba
jury may give credit \n such circnmstanceii,
which either have not been proved, or are nK
true, and they may ageravale the damagcy
upon lliat account : they then act under a mia>
take, which most certainly ought lo be rectified.
That is the ground upon which the present ap-
idication is tnaile. Bui if you consider it u
your own mind, it will oecesaarity result to thia
propnsitioD, that the jury hare Ibuod a fact
contrary lo eiiilence. As my brother Davj
u aware ihat there might be some difficulty
mamlaining thai proposiiinn, he put it ints
BDOtber shape, and aaid it was a circumstancs
Ihat was proper for the jury to consider a* a
gronnd for mitigaling the damagea ; inilead of
ahich, they bad fron Ihil oiicunutuieo >(■
177]
Fabrigas o. Mostyiu
A. ». 1775.
[178
fviTfttotf the damagM. So that, upon the
wMe, it will still rfcar to the same propoti-
tiM, that the J have acted upon a mistake, in
fifing aari|^avatt*tl damages upon a fact, which
ihfy hare fooml contrary to evidence. For
ftqr were ananimoasly of opinion, that what
Ik plaintiff did, was not done with any sedi-
iKm vie^, or tending thereto, but was an
flvaest preasing of a suit to be relie?ed from a
frievanee supposed. That was the enquiry
ttey were particularly ordered by my brother
GsuM to make ; and that was the answer that
Ihcy gave. Now, if in point of fact, they were
m mistaken, as that they ought not to ha?e
ken of opinion that the plaintiff did not act
with a seditious ?iew, but was only pressing
kiportanately a suit for relief from a supposed
gnerance, then they have given damages upon
a fake supposition ; they have given such as
ue DOl piroportionate to the* injury received.
The argament then seems to me to come to
this, that they have believed a fact which they
aagbt not to have believed, because the proof
was against it. We are therefore to consider,
whether the damages ought to have been raised
ss hiph or not. And there are two cases in-
Mted upon. One is the behaviour of Mr. Fa-
kigas, as tending to raise disorder and sedition
k tbe goreniment. The other is the conduct
af |overoor Mostyn, in extenuation of damages,
is acting under a mistake, and having taken
Ae best adnce the nature of his situation
admit. In order to understand this, we
for a moment the situation the go-
vvMBeBt stood in.
TUa island was conquered in 1708. The
nB|nererB (no matter in what mode) had
• i^|bl to impose what laws they pleased.
^■Btbe cession of the island, by the eleventh
artide of the treaty of Utrecht, part of the right
if the conqueror was giren up ; for it is stipu-
falcd, that the inhabitants shall enjoy their
bsBuurs, estates, and religion. So far there-
Ike the right of the conqueror is restrained ;
bsl with regard to their laws, there was no
MipolatioD, nor was it ever understood so by
Mwr people. It is well known that the earl
if Stanhope and the duke of Argyle, as pleni-
potentiarieii upon this subject, and afterwards
■y lord Boliogbroke, did assure the inhabi-
tttls, that they should enjoy their own rights
ni privileges, still subject to the supreme do-
toiioo of the conqueror. Those rights and
privileges which thev were to enjoy, were the
flSlabKshed municipal laws of the island, under
soeh regulations as the legislature of this conn-
^ should impose upon them. This assu-
riBce, made at that time, has been attended to
kr government ever since ; for they have had
m enjoyment of their privileges so assured to
Ibem, and have had such regulations, as the
gsvcrument and the nature of iJTairs have from
ttBc to time required.
The king in council, in the year 1752, (upon
wcral complaints having been made a^inst
fcacfml Anstruther, who had been the gover-
isr) made tbe regulation, as it ia called, of
VOL. AX.
1753 ; by which the king in council intended
to provide afifuinst that oppressive power of the
governor, which the inhabitants had com-
plained of, and that the people of the island
should be at liberty to sell their wines at the
price fixed by the jurats of (he different ter-
minos.— -These powers were soon found, or
thought, to be abused ; which occasioned a
representation to he made by tbe then governor
to the king in council, which produced the new
regulation of 1753, which leaned on the other
side, as the natives said : for as the former was
supposed to give too much power to the magis-
trates of the island, making them independent
of the governor ; so this threw too much power
into the hands of the governor, and laid them
too much at his mercy.
There is one thing mentioned in my brother
Gould's report, which I think proper to take
notice of, because it should not be so mintaken.
Oueof the witnesses in the cauise represented
to the jury, that in some particular cases, espe-
cially in criminal matters, the governor resident
upon the island does exercise a legislative
power.* It was gross ignorance in that person
to imagine soch a thing. 1 may say, it was
impossible, that a man who lived upon the
island, in the station he had done, should not
know better, than to think that the governor
had a civil and criminal power vested in him.
In the island, the governor is the king's ser-
vant : his commi^»ion is from the king, and
he is to execute the power he is invest^ with
under that commission, which is to execute the
laws of Minorca under such regulations as the
king shall make in council. How does it stand
after the conquest of this island in 1757, by
the French, and the relinquishment of it upon
the peace? When general Johnston was sent
as deputy -governor, he thought fit to make a
new regulation. Now, I conceive, it was a vain
iman^ination in the witnesses at the trial, (for
we don't want to go to Minorca to understand
the consitution of that island) it therefore was
a vain imagination in the witnesses to say, that
there were ^^e terminos in the island of Mi-
norca. I have at various times seen a multi-
tude of authentic documents and papers rela-
tive to that island, and I do not believe, in any
one of them, that the idea of the arraval of St.
Phillip's being a distinct jurisdiction was erer
started. Mahon is one of the four terminus:
ISt. Phillip's and all the district about it, is com-
prehended within the termino of tl'Iahon. But^
however, as it happens to lie near the glacis of
the fortification, and the governor's power (I
don't mean his legal authority) being there
greater than it may be in more distant parts of
the island, there has been a respect shewn him,
a decency |>erhaps to the governor, which has
prevented the magistrates interfering without
his knowledge. But to suppose that there is a
distinct jurisdiction, separate from the govern-
ment of the island, is ridiculous and absurd : it
is what 1 never did hear of, till it was men-
N
* Vide Mr. Wright's evidence, ante.
179J
14 GEORGE IIL
Adionjor Fabe Impritmment-^
[180
tiooed in my brother GouM's report. Geneial
Johnston made an alteration in the arra? al of
St. Phillip's, which is a district of a luile or two
in circamference, with some few hundre<l in-
habitants. He divided this into a subdivision
of four other districts, and annulled by his own
ttothority the regulation of 1752, respecting
the aiode by which the wines were to be sold.
jia far as appears in this cause, he did that
without authority. If he had the sanction of
gofemment, his instructions should have ap-
peared, if the defendant intended to a? ail him-
self of them. I only mean to be understood,
that general Johnston had no authority to su-
persede the order of counsel by his own power ;
out at the same time it seems to be a very sa-
lutary provision ; aud if he had represented it
to tlie lung in council, no doubt but it would
have been approved of. I may say that
the inhabitants approved of it, because from
that time there never has been any complaint
of it. A few years ago there were a multitude
of coiBplaints brought against the arbitrary
acts, as they were called, and the oppressive
oonduct of this very general Johnston. They
were heard in a full coiuicil with a great deal
of solemnity for a great number of days,
and the council came into a resolution upon
then. This alteration of the order in 1763
' was not one of their charges against him ;
therefore it is clear, that the inbabilants of
the arraval did sot at that time think it an
oppression.
We come now to the point of time, when
Mr. Fabrira complained of it. i will not
condemn him for referring to the order of
council. He had a right to know whether this
alteration of governor Johnston was made by
authority, and whether it had the effect of the
power of the king in council ; therefore I do
not condemn the thing itself. Mr. Fabrigas
not having met wiih that success which he ex-
pected, (thouffh governor Mostyn, 1 think, till
the time of the arrest and commitment, acted
with a great deal of caution, judgment, and
prudence, I can almost say impartiality) and
not being satisfied with the opinion of the go-
vernor upon the representation and defence of
jlllimundo, which he had never seen, desires to
see it. His petition is rejected. This produces
a peevish application again and again to the
governor, and from one complaint another
arises. New grievances are supposed to be
received, not f nly by Mr. Fabrigas, but by the
inhabitants of the arraval at large : and 1 can-
not say that 1 approve of the manner in which
he did prosecute tiin claim : the effect of it is
another thing He certainlj did not obstrve
that decency and respect to the (i^overnor which
he oui;ht to have done. If the governor
did not attend to bis complaints, the kin^f in
council was open to him. We ail know, that
the way to the king in council has been pur-
sued very often, where the governor ban not
attended to the complaints of the Minorquins.
Mm expressions indeed have ihe appearance of
■ility and respect ; but yet ihvro is a petu-
lance in the continuing his petitions, which
n\\g\ki disturb the governor. Thus the matter
goes on ; this man still complaining, and ear«
nestly pressing of his suit upon a grievanco
supposed, till the secretary informed the go-
vernor, that the plaintiff would come next day
with his petition backed with 160 of the dealers
in grapes and wine. This it is that is supposed
to alarm the governor. Now 1 will not reflect
so much upon the honour of any governor of
the garrison of fort St Phillip's, as to suppose,
that he really tliought his garrison was m any
more danger than this court is at the present
moment; nor will I suppose, that if he did
think his garrison was in danger, that he would
have taken such feeble means to defend it.
The governor was disconcerted by the petu-
lance of the man, and was off his guard ; and
though he took the advice of those who were
the proper persons to advise him there, yet bo
must have too much sense to imagine, that tho
advice they gave him was sucli as he could
either in law or reason follow. I aai not
speaking now of the law of this island ; but
it is totally contrary to all principles, and
to every idea of justice in any country.
But the next day, this petition is presented
by four men only. Then there is an end
of all danger to the garrison and the govern-
meot ; and you plainly see no disturbance was
meant; nor is there any evidence of hiasolicit-
ing the people, of his breeding cabals among
them, or exciting any tumult or disorder. Tho
plaintiff had, to say the worst, only behaved
nimself ill in the mode of his importunity ; and
when he was open to the laws of that country
(for such laws I presume there mtist be) if m
had offended, he might have been prosecuted
in the courts of criminal jurisdiction. Whether
he acted improperly, from not having suc-
ceeded in prevailing upon the majority of tho
people to think he was ri^ht in desiring to in-
force the order of 1752, is not the question:
the people seemed to be content with tue varia-
tion, or deviation, made by general Johnston*
Now when all these matters are over, this man
is committed to prison ; and there is the first
complaint : and I must toke it upon this mo-
tion, that it was a false imprisonment. If tho
governor had secured him, nay, if he had
barely committed him, that he micht have been
amenable to justice; an'd if he had immediately
ordered a prosecution tipon any part of his con-
duct ; it would have been another question, and
might have received a different consideration.
But he commits him to the worst prison in tho
island ; and in a way which I cannot conceive
came from general Mostyn. What could in-
duce him to use a man Mith such hardship and
inhumanity P Was not putting him into prison
sufficient? Why i«as he to he deprived of tho
society of his wife and children, without being
allowed any thing for bis sustenance but bread
and uater, and to lie upon the floor P In this
condition he remains for six days : then comon
a ftec«>nd impriKooment ; for 1 take the whole
year to be a cuntiututtion of the fidse imprisoBr
Tahrigat v, Mailt/n,
Hb ta lh#D COnftneil im Uianl a aliip, .
r ibr iitn nf r hmiinlimfnl in t'ar(hiii;eDii.
r. MnsTvn wan teil ii>ii> lliia. iin-
■ IbatiU pncltcwuf iheUlanil tfl'Miiiorcn, b;
«Akh ii wu tinual to Imnish - I giiiiposp ihe
lU HfDi)n|iim* ibnuubl fit t» iilviw linn lo tliii
wmmitr. But ibt- ^trninr Umw th*i lie could
Nnwf imnrtsnn him for « iwelvemfinlh, than
tabeoBuU inflici lliulorlure; yet the liir- '
toe, u xpI) an haniiilinicnt, tma iliV nIH taw nf
HiMwrm, whirh fell of cnurip wlirn il came
itia nor {Ht^*iinii>n. Eriry BiiLrliiih |[o»ernor j
kww bf coiilil nnt inflirt tlic toriure ; ilie eoD-
ntiiiion of (bin couniry jiiit nn end Id lliat idea. .
•n - . .. II ilrBg(f(s(nn boinl ■ Blii|i, »ilb
~~i nf inliiimanily and liaril- I
• I cmiiiai iwlifce of i;Fneral Moitvn ; '
beamed inloafuiviun enunlry, anil of
i for I belieie there are ,
r-rfHMM ipirn, ibnt no peraoiis ihould an lo '
>^n, ar l>« iiermilied lo qoit ihe pnri nf Car- '
*yi. All liiR mntiniKiiice In Spain, I Ionic
CM ■ «Duliiiuance of llie falie imprison-
{ faaeauae e>ery cnnatraint upon nenonal
Smj, wilboul leK^I aulliurjiy, ii a lalae ioi-
OlMit; ami il a nptain leaies a sailor
1 ilr<rrt iKland, tlioiigli he is lell al liberty
■, trt Ibe keeplntj: !'■■>■ from, that place lo
'■ be bad a right by law to cociie. Ii an
A. D. 1779.
years. The Court was applied lo for ■ new
■Hal, upon rxc-Biire damsgcB. Wliol did iba
Cnuii say? (and I neier be«nl llieir JiidEineiit
in Ibnt rnatler arraigned) '* We are noi ilie JD-
diciitiirc lu delerniine upon the deliberate judj^
Jury, iipnn aurh a aiibjecl as Ihit.
kHfiaaiUnes
Irii|WD r
I proper cailae the ciiDfta nf jiiRlice
men ■aii is a judicial way eiercined any power
«bicb tiMiir Uwa wnutd hate snppDrteit, and
■MHl llir tax* nFUli* oountry nu|{lit not, what
Ikceffrctof that wniild have becu has nolliin^
M ilu OTib ibii oauie ; for nuw we take it upon
te KPneral Imuc, Not Ouilly. In thia case.
A* niD ha* been impritoned under circum-
flneaa »f ifreiit harditiip for Iwelre niontha,
■rfkefi rramlheRammdnicaliat) nfbia family
mt km own cuDcema. lu this lituaiino be
blag* tm aOiun ; «ud Ihe Jury huvu tbnii||;hl
•ilai^r3,0<io/.ilaDiagF«. ToIm sura, {1,000/.
baa unmenite lum foraMinorquin to recoter :
■y brMber Da*y Ibouijhl proper In une the
ttyaaaiim "f (U ueia\g an imtra^eoii» aiiin. To
«fi*ha( ■■ ibr talueafllM liberty nf a man'*
fnaiiu.aeclnded from hia braily. under circum-
■UMvurhaidibip, fur Iweire inonlbi, ia a (tiffi-
aill inaltvr. Men'a minla will vary tnucb about
it: I alimiUI ibiok one tbinft, another would
Ihink ■mlha. lu tl>i< cbm of penonnl wrontfii.
aha* Im* Ibe law aaid ? The law ban naiJ, Ihal
^fary of IHalle men iball he llie jnil^ea lo de-
itrmtttt aiHl avea* tbe comiiensaiinii for Ihat
^— pal «ra<i|[. \\ e cannul but rei-ollrcl what
pM*rd ia ih-a* iinfurlimaiF affair* ibal tiap|>#n-
alatout <lir wcrclary of uste and a |irlnier'a
bi]. A ■•■rtaai ia taken itp under a mltiake,
Ml earri'it l>< a brlUr tluiue llian liis own, la
M »>ib Uirri |>i..v.<iiuiH llian he had of hia
Dak. ao'l •• t.rdii-il briirr Ihan he wnuld have
Hove Ibejury eacrclspd their jiid:jti
there any iinpntaiion upon their mnduct ex-
cept Ihp Idea nf Ihe comppnaation not being
pro|inrtiuneil ? Not at nil." Hov, can a court
of justice, thai i* to determine npnn Uw, set a
value upon tliii, and lay, it ia wntngfF What
woiild be llie onaeqiience ofil? If we say tliii
ia nmng, we niuct ^ay irhal la righu Then
t*e are lo tell the jury, " You are not tn Gnd
S.OOD;." ■■ Mb] we find 3,000/ 1,000/, 500 (.
or 100/. r Tell ua wliere you tblnk we ahould
herlijlit?" "We muMnnl lellyon; we bar*
no authority to do that ; liul you itiual oot gite
oulrageoua ilamaifes." I'W tliiiugh 1 may
know in my own mind whereaboulu I abould
compeimta the Injurv, wilhoiilBByinK wbelher
it would he more or fesa tbui tbis, yet I caiinol
pretcribe tn the jury what I think the value of
perBonal liberty. But il is aald, that tbe go-
Temordid what he uould in hi« ailualion ; but
wsa miataben. If' be wni miniaken, it ia a
il was preasFd belbte the jury, and they paid
Gucb attention to it a« lliey thouglit proper;
and Iheretbre It would be totally evoking the
cause from ita pro|ier determinalion lo say, that
ifaejury ought lu give some other damsgea thau
ttiey hate. Aa lo the ground on which the
defvudani'a counEel have made this moiinii, it
arisea frooi an accident, and I ihink au acci-
dint which was very properly protlded for;
for bad it not been, thai the learned judge who
tried the cause had patticularly in lermi recotn-
meaded the cnnsiderslion ot' (his point to lbs
jury, and taken their answer, the defendant
could not hate had any ground lo apjily for a
new trial. In my opluion, the learned judge
did tery right, and acted with great prudence
and justice to the parties, and tu the future
questions that may arise in Ihiacauae; tiir it
liiuks aa if Ihe parlies from the beginning in-
tended tn apply either hare nr elsewhere. Now
il ia a terv ditferent question, whstber the go-
vernor of"^ Minorca, finding a subject mutinoiii
and seditious, and disiurbiog his ((overninent,
can ari-esi and imprison him? or, whether he
can justify whut be has done, the jury baling
found thai he was iieillivr inulinous nor aedi>
liousf Had they fomtd the contrary, ihatfact
tiiight have been taken inio cunslderaliun in a
euuri of JQBtice ; bui as ibcy liate exercised
thai jurisdiction thecontliiutlon has given ihetn,
I ililiik there aught not lo be a new trial.
nir. Just. Guufdwd, Ihat the Court was not
wariMiiied in deirrinuilug thai ihe damagea
ne>e exresaive, wiiliout bieakliig in upon the
fundumenial principles of the conaliiuUon.
Hr. Just. BlaiktCoae observed, that these
(laiuagea goqU uui he called angry or tiadialiv*
I8S]
H GEORGE III.
Actitmjor Fake Imprhonment'^
[tSft
Otroages, as the injury was at ontrtgeous as
the dama^ret could l>e ejccetsive.
Mr. Just. Narfs declared, that Mr. Fabrigfat
had been impriRoued and treated in such a
manner ihat he did not care to repeat.
The whole bench were unanimous in refuvin^
a new trial, and the rule wai consequently dis-
cbarj^ed.
Farther Proceedings in the Cause of Fa-
brigas and mosttn.
The Court of Common Pleas ha? ingf refused
governor Mostyn a new trial, be reported to a
Writ of Error, which was allowed on the 14tb
of December 1773.
On the 16th of December he was obUged to
put in bail.
A rule was ii^iFen to transcribe the record in
Hilary term, 1774.
The first Scire Facias issued in Easter
term.
The second Scire Facias issued in the same
term, on the 16tb of May, returnable in Tri-
mtv-terro.
Mr. Fabrigas, the defendant in error, was
•erfed with a summons on the 7th of June,
that the plaintiff mi|y|^ht have time to assi^
errors till judge Gould had put his seal to £e
bill of exceptions.
On the 8(b of June, judge Gould came into
the court of King's- bench, and acknowWd^fed
bis seal.— The errors were assigned on the 16th
of June. The defendant pleaded in nulla est
erratum on the 30th. — A Concilium was moved
for on the 31st of June. — It was set down for
argument for the first Friday in Michaelmas
term.
It was argued on Tuesday the 15tb of No-
vember 1774 ; and the record is as follows :
*' The Record of the Proceedings in Fabrigas
and Mostyn.
« The Writ of Error.
'* As yet of Trinity-term, in the 14th year
of tlie reigu of king Geoiige the third.
■*' Our lord the king sent to his trusty and
well- beloved sir William de Grey, knight, hii^
chief justice of the bench, his close writ, in
these words ; that is to say : George the third,
by the grace of Go<l, of Great Britain, France,
and Ireland, king, '-defender of the faith, &c.
To oar trusty and well- beloved sir William de
.Grey, knight, our chief justice of the bench,
greeting. . Forasmuch as in the record and
prooesA, as also in giving of jud^'ment in a
plaint which was in enr court before you and
youp associates, our Juittioes of the bench, by
our writ lietween Anthony Fabrit^s and John
Mostyn, esq of a plea ot trenpass, assault, and
iilittimpri^nment, as it m said, manifest error
bath intervened, to the great damage of the
•aid John, as by hiscomplaiut we are informed :
we, willing that the said error (if any be) be
doly amended, and full and speedy justice done
to the aaid parties in this befaalfi do comnHmd
you, that if judgment lie given therenpon, then
you send to us distinctly and plainly, under
your seal, the record and process of the said
plaint, and a41 things toucning the same and
this writ ; so that we may have them in fifleea
days of St. Hilary, wheresoever we shall than
be iu England ; that inspecting the record aad
process aforesaid, we may cause further to km
done thereupon for amending the said error, ••
of right, and according to the law and custooa
of England, shall be meet to be done. WitneM
oorself at Westminster, the 6th day of De-
cember, in the 14tb year of our reign, Hil. A. L,
" The Return to the Writ.
" The Answer of sir William de Grayi
knight, chief justice within named. — The re*
curd and process of the plaint within nnentionods
with all tnings touching the same, I send be*
fore our lord the king, wheresoever, &c. at a
day within contained, in a certain record to tbe
writ annexed, as I am within commanded,
5ec. WnxiAM de Grey.
*' Pleas. Inrolled at Westminster before air
William de Grey, knight, and his brethren,
justices of bis majesty's court of GomoMa
Bench, of Easter- term, in the 19th year of the
reign of our sovereign lord George the third,
by the grace of God, of Great Britain, FranoOi
and Ireland, king, d^^fender of the faith, and le
forth. Rolls 616 and 617.
"The Declaration.
** In the Common Pleas. London to «ril,
John Mottyn, late of Westminster, in the oount^f
of Middlesex, esquire, was attached to answer
Anthony Fabrigas of a plea, wherefore be
with force and arms made an assault upoe tlw
said Anthony at Minorca, (to wit) at Londett
aforesaid, in the parish of Saint Mary-le-Bew^
in the ward of Cheap, and beat, wonnded, aed
ill-treated him, and there imprisoned him, aod
kept and detained him in prison there for e
long time without any reasonable or probable
cause, contrary to the laws and customs ef
this realm, against the will of the said Anthony,
and compellml the said Anthony to dejiart freei
and leave Minorca aforesaid, where the nid
Anthony was dwelling and resident, and carriid
and caused to be carried the said Anthony frea
Minorca aforesaid, to Carthagena in the domi-
nions of the king of Spain, against the will ef
the said Anthony ; whereby the said Anthony
was put to great expence and trouble, and tbe
goods and effects of the said Anthony tliewi
were diminished, lost, spoiled, and consumed,
and the family of the said Anthony were
brought to great want and distress, and tbe
said Anthony, during all the said time, wee
thereby deprived of the c«imfert of his aaid
family : and also wherefore the said Johu witb
force and arms made another assault upon the
said Anthony at Minorca, (to wit) at Ltondott
aforesaid, in tlie pari*ih and ward aforesaid, aed
beat, woended, and ill-treated him, and ilwrne
imprisoned him, aod kept and detained hint
there in priteii for e long timt^ withoet any
185] ' Fabrigas o. Moityn.
NMooiMc or probable caiMe, cootrary to tho
kvo oo4l ooaioont of tbii realoi, id^iiMfc the
vill of the md Aoihoo j ; and did other wroo^v
tihiiD, to the ^reat daniai^ of the iaid Au-
^^mj^ and against the peace of our lord the
■lokiiig: and thereupon the said Anthony,
^Richard Gregory, his attorney, complains,
Ml the aaid John, on the first day of Septeni-
kr, IB the year of our Lord 177 1, with force
•ad anus, (to wit) with swords, sta? es, sticks,
•ad fislOy made an assault upon the said Ao-
dHsy, at Minorca, (\o wit) at lx»ndon aforesaid,
■ mt parish of Ht. Mary -le- Bow, in the ward
sf Cbeaf y and beat, wounded, and ill- treated
Msi, and then and there imprisoned him, and
bpt and detained him in prison there for a long
(to wit) for the space of ten months, with*
•at aoT reaaoaabte or probable cause, contrary
Is iha laws and customs of this realm, against
db will aC the said Anthony, and compelled
'^~ '^ Anthony to depart from and leave
iforesald, where the said Anthony was
dvrelliog aod resident, and carried and
to he carried the said Anthony from
aforesaid to Carthsgena, in the do-
«f the king of Spain, against the will
■f the aaid Anthony ; whereby the said An-
I then and there put to great expenoe
trovhie, and the goods and effects of the
Anthony there were diminished, lost,
apoiM and consumed,- and the family of the
Anthony were thereby brought to great
and distress, and the said Anthony during
tfaa aaid time was deprived of the comfort of
aaid family ; and also, for that the said
•o the said first dav of September, in the
aComr Lord 1771 aforesaid, with force and
(to wit) with swords, staves, sticks, and
BMule another assault upon the said An-
, at Minorca, (to wit) at London afore-
/in the parish and ward aforesaid, and then
there beat, wounded, and ill-treated him,
then and there iuiprisoned him, and kept
detained him there in prison for a long
>, (to wit) for the space of other ten months,
any reasonable or probable cause,
to the laws and custonns of this/ealm,
apiDst the will of the said Anthony ; and
thm and there did other wrongs to him the
■id Autliooy, to the great damage of the said
Aalhoay , and against the peace of our said lord
kin|f: and thereupon the said Anthony
that he is injured and hath sustained
to the value of 19,000/. And thereof
hehringvth suit, &c.
" The Plea*
** And the said John, by James Da^e^ his
mamey, comei and defends the force and in-
jary, and says he is n(»t'guitty of the premises
above laid to his charge in manner and form as
the aaid Anthony hath above complaineil there-
•f against him ; and of this he puts himself
apan the country, &c. and the said Anthony
dstb ao Kkewiiie. And for further plea in this
bthalf as to the making the said assault upon
^ nid Aathooy in the firat count in the said
A. D. 177S. [186
declaration mentioned, and beating and ilU
treating him, and imprisoning him, and keep-*
iog and detaining him in prison for the aaid
space of time in tlie said declaration mentioned^
sitid compelling the said Anthony to depart
from and leave Minorca aforesaid, and carry-
ing and causing to be carried the said Anthony
from Alioorca aforesaid to Carthagena, in tba
fiomiuion^ of the king of Spain, by the said
Johu al)ove supuosed to have been done ; he
the said John, by leave of the court here for
this purpose first had and obtained, according
to the form of the atatute in that case mmim
and profided, says, that the aaid Anthony
ought not to have or maintain his said action
thereof againat him the said John, becauae ha
says that he the said John, at the said tima,
&c. aod long before, was governor of the said
island of Minorca, and during all that time was
invested with and did hold and exercise all tba
powers, privile^, and authorities, civil and
military, uetonging and relating to the go? em-
ment of the said island of Minorca, in parts be-
yond the seas; and the said Anthony before
the said time when, &c. (to wit) on the said lat
day of September, in the year aforesaid, at tba
said island of Minorca aforesaid, was guilty of
a riot and disturbance of the peace, order, and
government of the said island, aod was endea-
vouring to create and raise a mutiny and sedi*
tion among the inhabitants of the said island^
in breach of the peace, violation of the lawa»
and in subversion of all order and government ;
whereupon the said John, so being goverdor of
the said island of Minorca as aforeaaid, at tba
said time when, &c. in order to preserve tba
peace and government of the said island, was
obliged, and did then and there order the said
Anthoiiy to be banished from the said island of
Minorca, and to leave aod quit the said island.
And in order to banish and send the said An-
thony from and out of the said island, did then
and there for that purpose gently lay hands
upon the said Anthony, and did then and thera
seize and arrest him, and did keep and detain
the said Anthony, before lie could be banished
and sent from out of the said island, for a short
space of time, (to wit) for the space of six tiays
then next following ; and afterwards, to wit,
on the 7th day of Sf ptemlier, in the year af<ira-
said, at Minorca aforesaid, did carry and causa
to be carried the said Anthony, on board a cer-
tain vessel, from the island of Minorca afore-
said to Carthat^ena aforesai<l, as it was bwful
fur him to do for the cause aforesaid, which ara
the same, making the said assault upon tha
said Anthony in tht* first count of the said de-
claration mentioned, and beating and ih-treat-
ing him, and imprisfoning him, and keeping
and detaining him in prison for the said space
of titnc in the said first count of the said decla-
ration mentioned, and compelling the said An-
thony to depart fri»m and leave Minorca afore-
said, and carrying and causing to be carried
the aaid Anthony from Minorca to Gartbagena,
in the dominions of the king of Spain, %^ hereof
the said Anthony hath aboveeomplaiut J against
187J
14 GEORGE III.
Action Jor False Imprisonment'-'
[1S8
him: and this he is retdj to ferify. Where-
ibre he preys juilgmeot it' the said Anthony
ought to have or maintain his said action there-
of againxt him, 5ec. without this that the said
John was guilty of the said trespass, assault,
and imprisoninent, at the parish of St. Mary le
Bow, in the ward of Cheap, or elsewhere out of
the said island of Minorca aforesaid.
'* Thomas Walker.
*< The Replication.
** And the said Anthony, as to the said plea of
him the said Juhu, by him secondly above
pleaded in bar, as to the said assaulting the
nid Anthony in the said first count of the said
declaration mentioned, and beating and ill-
treatiutf him, and imprisoning him, and keep-
ing and detaining him in prison for the said
apace of time in the said declaration mentioned,
and cump«*Uing the said Anthony to depart
IVom and leave Minorca aforesaid, and carry-
ing ami causing to be carried the said Anthony
from Minorca aforesaid lo Carthagena, in the
dominions of the king of S|uiin, by the said
John above done, protesting that the said plea,
and tiie roattera therein contained are insuffi-
cient in law to bar the said Anthonv from
maintaining his said action against the said
John. For replication in this ^half, he saith,
that the said Anthony ought not, bv reason of
any thin^ bv the said John above in pleading
alleged, to be barred from havini^ his said ac-
tion thereof maintained against him ; becanse,
he saith, that the said John, of his own wrong,
and without atich cause as the said John hath
above in his said plea alleged, on the same day
and year aforesaid, at London aforesaid, in the
parish and ward aforesaid, assaulted the said
Anthony, and beat and ill-treated hiin,ttnd im-
prisoned him, and kept and detained him in
prison for the said space of time in the said de-
claration mentioned, and compelIe<l the said
Anthony to depart from and leave Minorca
aforesaid, and carried and caused to be carried
the said Anihony from Minorca aforesaid to
Carthagena, in the dominions of the king of
Spain aforesaid, in manner and form as the
said Anthony hath above complained against
him ; and this he prays may be enquired of by
the country. And the said John doth so
likewise. John Glynn.
" Award of the Venire.
** Therefore, as well to try this issue as the
said other issue between the said parties above
joined, it is commanded to the sheriffs, that
they caiibe to come here, in three weeks of the
Holy Trinity, twelve, &c. by w hom, &c. and
who neither, &c. to recognize, Sec. because as
well, ^c.
" At which day the jury between the said
parties of the plea aforesaid, was respited here
.until on the morrow of All Souls then next
following, unless sir Henry Gould, kni^h , one
of the king*K juHtices of the bench here as-
■igned by rorm of the statute, &c. should first
eooei 00 Fndaj the Sod of July last pest| ai
the Guildhtill of the city of Loodoo. And
ROW here at this day cometh the said Anthony^
by his said attorney, and the said justice, before
whom, dkc. hath sent here his record io thcae
words.
«(
The Postea.
** That is to say, afterwards, on the day and
in the year, and at the place within- raentiondly
come as well the within- mentioned Anthony
Fabrigas as the within-named John Mostyn, by
their attornies within-named, before sir Hearv
Gould, knight, one of the justices of the benco
within- named, and certain of the jurori,
whereof mention is within made, summoned to
be upon that jury, (that is to say) Thomas
Zachary, Thomas Ashby, David Powell, and
Walter Ewer, being required, come, and od
that jury are sworn ; and becanse tlie rest of
the jurora of the same jury do not appear, there*
fore eight other peraons of the by-standcre,
being by the sherifls within-written hereuolo
elected, at the request of the said Anthony, ami
by the command of the said sir Henry Ooald,
are now newly set down, whose nanotes are
affiled in the within-written pannd, according
to the form of the statute, &c. which said
jun>ra so newly set down, (that is to say) Wil-
liam Tomkyn, Gilbert Howard, Thomas Boal-
by, and John Newhall, John King, Jaaaea
Smith, William Hurley, and James Selby,
being also required, come likewise, and, toge»
ther with the said other jurora before inipaa-
nelled, are tried and sworn to speak the truth of
the mattera within contained ; who, upon their
oath sav, that as to the firet issue within-joined^
the said John Mostyn is goilty of the premises
within laid to his charge, in manner and fiim
as the said Anthony hath within complainedl
against him : and as to the other issue within
joined, the said jurora on their said oath further
say, that the said John Mostyn, of his own
wrong, and without such cause as he hath in
pleading within alledged, on the day and in tha
year within mentioned, at London, in the parish
and ward within mentioned, assaulted the said
Anthony, and beat and ill-treated him, and im*
prisoned him, and kept and detained him in
prison for the space of time in the within de>
claration mentioned, and compelled him the
said Anthony to depart from and leave Minorca
within roentifkoed, and carried and caused la
be carried the suid Anthony from Minorca
aforesaid to CarthaGfena, in ihe dominions of tha
king of Spain within mentioned, iu manner and
form as he the sdid Anthony hath by his repli*
cation within alledged ; and ihey aasess the
damages of the said Anthony, by reason of the
premises within specified, besides his coats sod
charges by him laid out and eiuended aheiit
his suit in this behalf, to 3,000i. and for his
said costs and charge*;, to turty shillings.
Therefore it is considered, that the said An«
thony recover against the said John his da-
mages aforesaid, to 3,000/., and UL bv the
jurv aforesaid, in form atoresaid asseascdy and
88/. 10 thesakl Anthony, at his leqacst, ibr thn
J89]
Fabrigoi v. MMyfU
A. D. 1773.
[190
CMfti and chftrfpes aforesaid, by the Court here
ftrndrease adjudged ; which said damages in
Ike whole amouot to 3,090/., &c. Afterwards
« at is to say) before our lord the kiog at
citminster, conies the said John Mostyn, in
baprouer peraon, and says, that at the trial of
Ikaid caoae before the said sir Henry Gould,
Isfhtt the counsel of him the said John Mos-
t^ proposed certain exceptions to the ophiion
• Be aaid sir Henr^r Gould, which exceptions
■we written in a hill, and sealed by the said
■%e; which bill of exceptions the said John
Mtya now brings into this court ; and prays
i writ of our lord the king to the said sir Henry
Gaald, to eonfesa or deny his seal so put to the
■id bill of exceptions, according to the form of
Iha statute in such cases made and pro? ided,
vbicfa writ is granted to him returnable iu 15
^ta firoiD the day of the Hoi v Trinity ; at
vhidi day, before our lord the king at West-
■iwatfr, conies the said Johu Mostyn in his
S«r pamn ; and the said sir Henry Gould,
[bt, likewise in his proper person, comes
acknowledges bis seal put to the said bill
tf ooeptknia, which bill of exceptions foUowa
■ tiMao worda.
<< The Bill of Exceptions.
^ That ia to say, on the morrow of the Holy
TWnity, 13 Geo. 3. Be it remembered, that in
Aatenn of Easter, iu the 13th year of the
MfB of our sovereign lord George the third,
■aw kin^ of Great Britain, and so forth, came
Aashaay Fabrigaa, by Richard Gregory hia
MHBCjt into the court of our said lord the king
if Iho Bench at Weatminster, and impleads
Uoatyo, late of Weatminster, in the
of Middlesex, esq. in a certain plea of
on which the said Anthony declared
bim.
[Tbe declaration, plea, and replication, are
act out verbatim, which, to avoid repeti-
are now omitted. Af^er. those pleadings
the bin of exceptions proceeds in these words.]
** And afterwarda (to wit) at the sittings of
Ma Priua, bolden at the Guildhall of the city
af London aforesaid, in and for the said city,
Mom the bon. air Henry Gould, knight, one
ef the joatioea of our said lord the king of the
Bench, Thomas Lloyd, esq. being associated to
him aoDording t/o the form oC the statute in such
caae made and provided, on Monday the 12th
day of inly, in the 13tli year of the reign of
ear aaid lord the now king, the aforesaid issues
aa joined between the said parties as afuresaid,
fsme on to be tried by a jury of the city of
Landon aforesaid, for that purpose duly iin-
faaoelled ; at which day came there as well
the aaid Anthony Fabrigas as the said John
Maatyo, by their attornies aforesaid. And the
JBiora of the jury aforesaid, impannelled to try
Ibe said iasuea, being called over, some of them,
asaKly. Tliomaa Zacbary, Thomas Ashby,
Usvid Powell, and Walter Ewer, came aud
acre then and there in due manner chosen and
Mvom lo try the aame issues ; and because the
OH af tba jurors of the same jury did not ap-
pear, therefore othera of the by-atanders being
chosen by the sheriffs, at the request of the said
Anthony, and by command of the said justice,
were appointed anew, whose namea were
affixed to the pannel of the said jury, according
to the form of the statute in such case made
and provided ; which said jurors so appoioted
anew, (to wit) William Tomkyn, Gilbert
Howard, Thomas Boulby, John Newball,
John King, James Smith, William Hurley,
and James Selby, being likewise called, came,
and were then and there in due manner tried
and sworn to try the same issues. And upon
the trial of the said issues, the counsel learned
in the Ulw for the said Anthony Fabrigas, to
maintain and prove his said declaration, on hia
part gave in evidence, that the said John, ai
the island of Minorca, on the 17th day of
September, in the year of our Lord 1771, aeized
and took the aaid Anthony, and without any
trial impriaoned him for the space of six daya,
a^inst his will, and banished him for the apace
of twelve months from the said island of Mi«
noroa, and caused him to be put by soldiers on
board a ship, and to be transported from the
said iaiand of Minorca to Cartbagena in Spain,
for the said space of twelve months : where-
upon the counsel for the said John Mostvn did
then and there, on the part of the aaid John
Mostyn, give in evidence, that the said
Anthony was a native of Minorca, and at the
time of taking, aeizing, and imprisoning him,
and banishing him as aforesaid, waa residing
in and an inhabitant of the arraval of St. Phil*
lip'a in the said island. And it was further
Siven in evidence on the part of the aaid
efendant, that the said island of Minorca
waa ceded to the crown of Great Bri-
tain by the king of Spain, by the treaty of
Utrecht, in the year of our Lord 17 13 ; and
that the article in the said treaty, relative to
the said island, is as follows : ** Rex porr(> Ca«
tholicus, pro se, hseredibus et successoriboa
suis, cedit parit^r corooie Magne Britannia
totam insulam Minorca;, ad e^mque transfert
in perpetuum jus omne dominiCimque plenisai-
mum aupradictam insulam, speciatlm vero
super urbem arcem portum muuitiones et si*
num Minorisenses, vulg6 Port Mahon, un4
cum aliis portubus locis oppidisque in prefatft
insult sitis ; provisum tamen est ut in articub
suprascripto quod nullum perfugium, neque
recpptaculum patebit Maurorum navibua bel-'
licis quibuscOnque in Purtu Mahonis, aut in
alio quovis portu dictee insulce Minoitse, qu6
orae Hispanise ipsorum excursiontbus iniestea
reddantur. Quinim6 commorandi 8olummod6
caus4 secundilm pacta convcnta Mauris eorCim-
que navigiis introitus in insulam pnefatam per-
mittetur. Promittit etiam ex su& parte regina
Magnee Britanniie, qu5d si quand5 insulam
Minorcce et portus oppida locaque in e^lem
aita a coronll regnorum suorum quovis modo
alienari in posternm contigerit, dabiiur coronsa
Hispaniee ante nationem altam qiiauictinque
prima optio possessionem et proprietatem pitr^
memoratce insule redimenUi. Spondet insup^
191]
14 GEORGE III.
Adkmjbf Fabe ImpriMnment^^
[19f
regria ma roajestM Magne Britannue, ie fitctu-
rsm lit iocobe omnen insuls pnelktoe taiii ec-
desiastici quam secalam bonis suis unirenis,
etboDOribaa tut6 pacal^ue fruantur. Atque
reli^onia Romaoa Catholics iiher uaut iit
permittetura, Otqae etiamejut modi ratioDefs in^-
■ntnr, ad tuendaio reliij^onein praMlictain to
cftdem insiilft, que ^ gtibernatione civili atque
ik legibas Magnie Britannie, penit&s abtiorrere
noD f ideaolar. Polenint etiam suis honoribiis
ct bonis frui, qui nuocsus Catholice majestatit
verTitio addicii saiit, etiamsi in eodrm perman-
•erint ; et liceat cuicunque, qui prsefataro in-
aulam relinquere ? oliierit, bona sua ? eodere et
liber^ io Hispaoiam transvehere." And it was
further given in evidence oo the part of the said
defendant, that the Minoroiiins are in general
governed by the Spanish laws, but, when it
•ervet their purpose, plead the English laws.
And it was further pvPD in evidence on the
behalf of the said defendant, that there are
certain magistrates, called the chief justice
criminal, and the chief justice civil, in the said
island. And it was further given in evidence
by James Wright, the secretary to the defen-
dant, that the said island is divided into four
districts, exclusive of the arraval of St. Phil-
lip's, which the witness always understood
to be separate and distinct from the others, and
under tlie immediate order of the governor ;
so that no magistrate of Mahoii could go there
to exercise any function without leave first had
from the governor. And it was further given
in evidence on the part of the said defendant,
by colonel Patrick Mackellar, that the arraval
of St. Phillip's is surrounded by a line- wall on
4>ne side, aud on the other by the sea, and is
called the royalty, where the governor has
greater power than any where else in the
island, and where the judges cannot interfere
but by the governor's consent. And it was
further given in evidence by £dwanl Blalce-
ney, who had been secretary to governor
Blakeney, that nothing can be executed in the
arraval but by the governor's leave ; and the
judges have applied to him the witness for the
governor's leave to execute pnicess there.
And ft was further given in evidence by the
■aid James Wright, that for the trial of murder
and other great offences committed within the
said arraval, u(M}ii application to the governor,
be generally appoints the asseaseur criminal of
Mabon, and for lesser offences the mustastaph ;
and that the said John Mustyn, at the time
of the seksing, taking, imprisoning, and banish-
ing the said Anthony, was the governor of the
said island of Minorca, under and hy virtue of
certain letters patent of his present majesty,
under the great Mai of Great Britain, bearing
date the 2il day of March, iu the 8tli year of
bis reign, whereby hi« majesty constituted and
appointed the said defendant to be captain- ge-
neral and governor in chief in and over the
said island of Minorca, and the town and gar-
rison of Port Mahon, and the castles, forts, and
other works and fortifications thereunto belongs
ing, and all other towns and pUces within the
said island ; and his majesty did thereby give
and grant onto the said defendant John Mos-
tyn, or in his absence to the lieutenaint-govser-
nor, or commander in chief for the time being,
all ffowers, privileges, and authorities, civil and
military, unto the said office belonging, to
have, hold, and exercise the said office, powers,
privileges, and authorities. dnrin^Jf his majesty's
Hill and pleasure; and the said defendant Jolin
Mostyn, or in his absence the lieutenant-go-
vernor, or commander in chief for the time
beinsT, arc to observe and obey all the orders
and instructions therewith given to him, and
all such further and other orders and instmc-
tions as shall he from time to time given to him
under his majesty's royal sign manual or sig<'
net, or by his majesty's order in privy-coun-
cil ; and his said majesty did thereby strictly
charge and command all his officers, ministem,
magistrates, civil and military, whatsoever, and
solfliers, and all others his loving subjects, in-
habiting or being in tbe said island, to obey
him the said John Mostyn, as captain-c^eneral
and chief governor thereof; and that the de-
fendant, being so governor of the said island,
caused the said Anthony to l>e seized, taken,
imprisoned, and banished as aforesaid, without
any reasonable or probable cause, or any other
matter alledged in the defendant's plea, or an^
act tending thereto. But neverthelera tbe said
counsel for the said John Mostyn did then and
there insist before the said justice, on the behalf
of the said John Mostyn, that tbe said several
matters so produced and given in evidence on
the part of the said John Mostyn as aforesaid,
were snfticient and ought to be admitted and
allowed as decisive evidence, to entitle the ssid
John Mostyn to a verdict, and to bar the said
Anthony of his aforesaid action ; and the said
counsel for the said John l^Iostyn did then and
there pray the said justice to admit and allow
the said matters so produced and given in evi-
dence for the said John Mostyn, to be concla-
sive evidence in favour of the said John Mos-
tyn, to entitle him to a verdict in this cause^
and to bar the said Anthony of his action afore-
said. But to this the counsel learned in the
law of the said Anthony, did then and there
insist before the said justice, that the same were
not sufficient nor ought to be admitted or al-
lowed to entitle the said John Mostyn to a ver-
dict, or to bar the said Anthony of his action
aforesaid. And the said justice* did then and
there declare and deliver his opinion to the jury
aforesaid, that the said several matters so pro-
duced and given in evidence on the |iart of the
said John Mostyn, were not sufficient to bar
tbe said Anthony of his action aforesaid, and
with that direction left the same to the said
jury; and the jury aforesaid then and there
gave their verdict for the said Anthony, and
3,000/. damages, Whereupon the said coun-
sel for the said John Mostyn did then and there,
on the behalf of the said John Mostyn, except
to the aforesaid opinion of the said justice, and
insisted on the said several matters as an ab-
solote bar to the said acliODt And inasmock
ISS] Fabr^eu v. Modyn*
■t tbo Mid ■ereral matters so produced sod
B'nm in evideoee od the part uf tbe said John
ostjn, mnd by bis counsel aforesaid objected
ami inaisted on as a bar to the action aforesaid,
da ant appear by tbe record of the verdict
afanaiil, the said counsel for the said John
Ikryn did then and there propose their afore-
saitf exceptions to the opinion of the said jus-
lier, and requested the said justice to put bis
m\ to tbw bill of exception, contsioing the
md aereral matters so produced and §p?en in
trideooe oo the part of the aaid John Mostyn
ai aferesaid, according to the form of the sta-
tala io such case miule and profided. And
Ibcieapoo the aaid justice, at the request of the
■id eouDsel for the said John Mostyn, did put
Ml ami to this bill of exceptions, pursuant to
Ihe aforesaid atatute in such case made and
piwided, on the said ISth day of July, in the
15th year of the reign of his present miyesty.
** Assignment of Errors.
** And hereupon the said John Mostyn says,
that IB tbe record and proceedings aforesaid, and
also io the matters recited and contained in the
ssid bill of exceptions, aud also in giving the
terdid upon the said issues between the parties
aferesaid joined, and also in giving the judg-
■eat aforesaid, there is a manifest error in
Ibif, that the justice before whom, &c. had no
authority, or jurisdiction to try the
or either of them, at the time
the aaine were tried as in the record
; nor had the said JuNtice any
faver or authoritv to take or swear the said
|MT tlierenn. There in also error in this,
Mtbe said justice before whom, ^c. at ami
^BB tbe trial of the said issut^ between the
fm^afonrsaid joined, did declare and deliver
Vk opinion to the jiir^ afnri'saiii, thatuhe said
■Cftral matters nienlioiieil in the said bill
sf exoeptiiius, and so as albresaid profluced
aad proved on the part of the Kaid Joiin Mos-
t^a, were nut upon the whole of the case suf-
Barat to iMr the said Anthony Fabrigas of his
aud action against him, aud with that opinion
kA the saoi*- to the jury ; whereas the Name
were suliicieot to bar the said Am bony of his
■i4 acu«iD- There is also error in tliis, that
ly the record aforesaid it appears, that the
tcrtict afuresaid was given upon the suid issues
Wcwreo the naid parties joined, for the said
Aaiboiiy Fdbrigas ; whereas l»y the law of the
Und, the verdict on the said issues ought to
hste b*-eii )(iven for the suid John Mostyn,
igsin^t the said Anthony Fabrigas. Tliere
ii a]<m ernn- io this, that it appears by the re-
csrd aforesaid, that judt^inent, in form afore-
■id ifiveii, was i^iven for the said Anthony
Fabrii^a^ aitainst him the said John Mostyn ;
wbi-rrii% by the law of the land, jndginent
asuebt to have been given for the said John
MiAl^n against the said Anthony Fabrigas.
Aad ihe said John MoMtyn prays, that the
jadgmeut aforesaid, for the errors aforesaid,
aad others in the record and proceedings afore-
, may be re? erted^ annulled, and altogether
VUU XX.
A. D. 177S. [I9A
had for nothing ; and that be the said John
Mostyn may be restored to all which be ha»
lost by occasion of the judgment aforesaid, &o*
"In Nullo.eat Erratum.
** And the said Anthony hereupon voluntarilj»
cornea in bis own proper person into court here,
and says, that neither in the record or proceed*
ings aforesaid, nor in the matters recited anit
contained in the said bill of exceptions, nor ii|
giving the verdict upon the said issuea betweea
the parties aforesaid joined, nor in the giving
the judgment aforesaid, is there any error:
and the said Anthony prays, that the court of
our lord tbe king now here will proceed to the
examination, aa well of the record and pro-
ceedings aforesaid, as of the matters recited
and contained in the aaid bill of exceptions and
of the matters aforesaid above assigned for
error, and that the aaid judgment may be in
all things affirmed. But because tbe Court of
our lord the king now here is not yet advised
to give their judi^ment of and concerning tbo
premises, a day is therefore given to the par-
ties aforesaid, to be before our lord the lung,
until on the morrow of All Souls now next
ensuing, wheresoever, &c. to hear judgment of
aud upon the premises ; for that the Court of
our said lord the king now here is not yet ad*
vised thereof, 5cc."
Mr. BuUer. My lord, there are aome atraoge
blunders upon tliis record, which thoui^b I
might make objections to, I will not mis-speud
the time of the court in slating them, because
1 can easily conceive myself that they will ad-
mit of a very short answer ; and therefore,
waving all objections to the formal part of the
record, the general question upon this record
will be, Whether an action can he maintained
in this country against a governor of Minorca^
for an imprisonment committed by him there,
in his character and office of governor, upoi^
the person of a Miiiorquin, even though the
governor should have erred in his judgment,
anil have been mistaken in the necessity whicU
he conceived demanded an immediate and re-
solute exercise of the powers of his office?
My lord, thongh this be the general question,
I shall beg leave in the argument to divide il
into two : first, whether in any case an action
can be maintained in the courts at W^tstminster,
for an imprisonment committed at Minorca
upon a native of that place: and secondly, if it
should be admitted that an action will lie
against any other person, yet whether such
action c^n be mahitained against a governor,
acting as such within the i>eculiar district of
the arraval of St. Pliillip's? My lord, iu the
consideration of both these questions, it may
be material to attend a little particularly to the
situation and constitution of the island of Mi-
norca, and arraval of St. Phillip's, within which
this transaction arose. As to that the Conrt will
be much relieved by the contents of this re-
cord; for it is l!here stated, that this island, till
the year 1713, waa a part of the dominioni of
195]
14 GEOHGE m.
AdUmJbr FaUe Impriaonmettt-—
[19«
the kingdom of Spiin, and then it was ceded .
to the crowD of Great Britain, reservini^ to the ,
inhabitants their property, their religion, and .
the laws necessary fur the preservation of their i
relii^ioo. It is further stated in the record, |
that the island is not governed by the laws '
of England, but by the laws of Spain ; and
that the arraval of St. Phillip's is subject only
to the controul and governnnent of the go-
Ternor himself, for in that there is no regular
law- officer ; there is no power to which the
subject can apply for justice but to the go-
Yernor himself; he is therefore the sole and
absolute judge within the arraval ; bis will is
the law there, and that district tt least is
t despotic go? emment. Whatever may be the
case in colonies and newly- discovered coun-
tries, I fancy it will not now be denied, that,
even in countries obtained by conquest, the old
]aws of the place continue in force till they are
changed or aller^ by the conquerors : much
less can it be contended, that In a country ceded
as this was, the laws of the place receive
any alteration till a change is declared by the
new sovereign. In the present case, there has
been no new code of laws established in this
island ; and therefore, indepciii^ently of the par-
ticular facts which are stated as proved in this
cause, 1 think I may safely assert it as an un-
deniable proposition, that this island is now go-
Terned by the same laws as it was before the
year 1713.
It is stated in the record, that 'the district
where the present cause 6f action ah»se is sub-
ject only to the immediate order of the go-
Ternor ; so much so, that no judge of the
island can exercise any function there, without
the particular leave of the governor for that
purpose.^ If the laws of the country where the
offence is committed are different from the
laws of this kingdom, it seems to me to make
DO difference with respect to the propriety of an
action, whether such country is subject to the
crown of Great-Britain, or to any other state;
for whether the fact be an offence or not, naust
be decided by the particular laws of the place
where it was committed, and not by the laws
of this country. This is a case whet« the law
of the place is different from the law of this
country; and therefore the question might
have been taken much larger than I have done
it : namely, whether the subject of a foreign
power, wh*o rules by laws different from ours,
can, for an act done in his own country, seek
redress in the courts of England. I believe
there are no authorities in support of such a
position ; and whatever may be the case, where
the laws of different countries agree, and where
the transaction has been between British sub-
jects, with a view to the laws of England, (which
was the case of Robinson and Bland, Bur. 1078),
that can be of no avail in the present instance :
for I take it in this case, if the action can be
maintained at all, it must be governed by the
laws of Minorca, and not by the laws of Eng-
land. It is said in the case of Robinson and
BUody that the laws of the plac< irhere the
thing happened does not always prerail ; and
there an instance is put by Mr. Justice Wil-
mot, that in many countries au action may be
maintained by a courtesan for the price of her
K restitution, but that no such action can be al-
iwed in this country. That is undoulitedly
true; for wherever the foreign law is contrary
to the law of God, to the law of nature, or
' contra bonos mores,' this Court will not recogw
oize it ; but neither of these is the present case.
My lord, besides, there is a great difference be-
tween entertaining a suit, and giving a remedy
upon an immoral transaction, and punishing a
man for an act, which, if done here, would be
deemed a crime, but, in the country where it
is committed, is esteemed none. In such t
case as that, the law of that country can never
be the rule by which this Court will govern
themselves, nor could they with propriety give
a judgment contrary to the known law of tbk
land ; and therefore, I should apprehend, that
in such case they would refuse to hold plea at
all. That seems to have been the opinion of
lord chief justice Pratt, in a case that came be-
fore him m the year 1765: that was the case
of Pons against Johnson, and a like case of
Ballister aninst Johnson. Those were two
actions tricS at the sittingi after Trinity-term
1765 ; an action of trespass and false imprisoiH
meet, bronghc by the plaintiff, a native of Ml*
norca, kgminst the defendant, who was gorer^
nor. The fkcts were, that iii Minorca there it
a court called * Trihimal of Royal Govemittent :*
the gOTemoris president, the assessor is judge:
the fiscal' is in nature of attorney gencnJi
during the pendency of a cause, but, when sen*
tence Is to oe Mssed, he has a voice as well ae
the assessor, if they agree, the governor ii
bound to confirm : if they disagree, the go-
vernor has the casting voice. It waa proved,
that this is the only court of criminal jurisdie-
tion, and that slanders are considered as cri-
minal suits ; that the defendant wrote a letter
to the assessor and fiscal, complaining that the
plaiiitiff had spread re|K>rts injurious to binii
and desiring them to enquire into it, and act ae
theji^ thought just and fit. Upon this letters
" dire
the fiscal directed an enquiry, and the
ordered ulaintiff to be imprisoned: he ap-
plied to oefendant Johnson to be bailed, wno
refused to bail him ; but it appeared that the
assessor was the person whose business it WtiB
to bail, though orders, as well for impriaoning
as bailing, often passed in the name of the court.
Upon this evidence it was objected, first, that
by the treaty of Utrecht, the inhabitants have
their own laws preserved to them, and are not
to be sued here, and therefore have no right to
sue here : secondly, admitting them to have o
right to sue here, the action is misconceived.
Ice. Lord chief-justice Pratt said, ** I think
it very improper such action should be brought
here, where foreign law is to be brought into
question : the bconvenience appeara bere^
where all the evidence we have had is tlio
testimony of one vritness; and I should think
if 1 were under the neceintj of proiioiiBciiBf
Fabrigas v, Moslyit.
V'W^.^J'^ ^>' pirole «*icknce ooght not
M&aiumcicDi, but a coinmiHion BbuuM ^o,
pi ilM k<* be certiBeil." Ai to ilie questiuo
■jHiiMlictiaa, his lordship Mid. " Itiacerlain
Mn tr* maoy cases of traotiKuy actions be-
Rmi Mibjecl Kod lubjecl, where, tbnugU llie
tMiariae* in a foreigD uounlry, the action
■5 le brouifbt here ; sucb as contract, trcs-
jM,are*M>Tab«iii]prigDDmEnlorioinefaind*:
irflh* rule ihal should guvero seemi to be,
ikt« Ibn subject miller ii nf that kind, Hint
ttlnr of DDlure ahnuU goiero all orer the
ndd. And I Ibiak, lliat a persou nlio is au
>.'3kb(iu)il liare a ti(;bl (o Biie here in cBics
'<il ku>4 : bat I tbink tbii ia not to be ex>
itS M tnutntory aciloni of erery kind,
-reibc! Um foci issoinlarmixeil wilblbecase
' 111 alter tlie caw, anil vary the legality ol'tbe
jntactioa." Ilia lurdibipihen expressed la me
M* DO the form of tbe plea; and finally
. .tinted ibc plaiatilfa ua auollier poiot. Aly
M, I cilc tbia caae Air the sake ofthe reaton-
■r eHilain««l ■■> <t ; lad lliere trai the opinion
mi tay learned judge, that an aclioa in this
■■Htry wmm iiDpro)ier, wh«re it was.to inler-
■nd tad I<1«oiled wilU the law of another
a^uy, as (o vary or chaoKe the legality of
ihlniKacrio*!. My lord, aonlher thing which
mora by *)>at c'^ *'r tl»i though lord Cam-
^tMDf Id Ihitik sn acliun may in some esses
baa a fanafi" traiiiiaclion, yet he confini:'!. it
ll ^BH ohnre llie tranaaclion happened lie -
INw •tilij'ct and suhjecl. This is not a trans-
fcwii otiicb bapjieiied tielween auhject and
I .■'■^Uiiii 81 of ihe realm of Engtaod)
> ••■ where the same law gnverns all
rkl; but it ia that pnrliculur case
<>v lonl Camdeu, so niixe<l with ihe
>i It alli^ii llie caae, and rarlea the
ilie IraoMciion. In crimioal coses
-> i>F dear, that an offence cum-
1 1 rf i|;n parts cnunol, unless under
' I •lutes, he tried in tliii country j
.<|iiiiiaannallie Court of Exi:hemier
r* ported in tit Vexey, S16, The
< ^<mpany iguinsl Campbell, 7tli of
I - Ku lufurmuiron was hrouglil in ibe
E(u>' I'' iU<' litorney General, that the defen-
Awi Diigbi diacoter bow he uaroc by the poa-
(r«Bd, Txdencv, cuntrirance, or oiher meaus ;
«ail It kifUirr ih»y weie not the property of tlie
bsdiaua, fruin whom tlicy were so taken by the
^fewtaai ami otliets. The court there aay ihe
nric ia, ilui ibiaconil ahall not ollige one to
AaMTTFT Ihal, wbicl>, iriieanBHera in ihe af-
6r)ut>", will s'>liji-ci bun to the puoishmcnl
t^ a criiD£ ; rt,r it n not niilerlal, that if he
■^■ef«ui Ihr ue^-utiie, it wdlhc iiobnrin: and
ibu he M puki'-hal-W, appeara from the caae of
ttmithti^': ftarkvr, Alk. 21. as ajuriadiction ia
wmad nCalciUla lur criminal lacis, where he
bare : tike the case i
in a raps in Ireland, and sent
imty tbe go' eminent tu be tried, al-
IIm ewn ol b- B. bare tiluMU lo do it.
A. D. 1775.
[198
My lord, here is a posilire o|>iuion, that in cri-
rnmal cases arising abl-uad there is no juris-
diction iu the copiinon lair court* In England.
The only thing to be done is to send the party
to tbe country where the offence was com-
mitted; but it ahall not be tried here, tfa man
were lo marry two wires in a country where
bigamy i* allowed, it can nerer be contende<l
in anch a case, if Ihe rnan came into England
he should be liable to he hnnged here, becauss
it is an offence in Ihis country, though nuna
where it was coilimilled. If a crime commit-
ted abroad cannot be tried hrre, upon what
ground shall a civil |iersonil Injury, done out of
Ihe kingdom, be tried here ? There are many
reasons why a crime committed abroad might
be tried here, and a civd injury not ; but do
reaaon occurs to me why a ciTilinjury should,
and a crime not. Ciril injuries depend much
upon the police and conalitulion ofthe country
where they occur, and the aame coudiict mn^
be Bclionable in one cutintry which la ju8ti&
able in another: but in crimes, as rourijer, per-
jury, and manyother uffencfs, Ibe laws of most
counliies lake lor their basis the law of (lod and
Ibe law of nature; and iherefore, though tha
trial be in a different country from that in whicb
the offence was cnmmilled, there is a greater
prohabitity ofUiKtributing equal justice in aucb
cases, than in ci»il actions. The case men-
tioned in Keilney, 20S, and canBinied in tha
41h Inslilute, W3 and i, is also an authority ib
myfamur. Il first of all gives a hialory of
sir John Stanley's family, and there fiie jioiuta
were resnlveil ; first, that the isle of Man waa
an ancient kingdom of itself, ami no part iif the
kingdom of'Engbud ; secondly, ibey aflirlDed
■he case reported hy Keilwey, anno ihe I-llti
Henry Ihe 8lh, to be law ; namely, Michael-
mas Ihe 11th Henry 8lh, an office was fumii),
that Thomns earl of Deib^v. at the limp of hia
deuth was seized of the fsle of Man iu fee j
whereupon the countess his wife, by her coun-
sel, moved In have her dower in the Chancery ;
but il was resolved hy Brudnell, Bronk, and
F ill herb erS justices, and nil theking'i connsef,
ihat the office was merely void, Itecause t^e
isle of Man was nn part of the realm of EnjJ-
laud, nor »as governed by the laws of Ibis
land ; but it wfs like to Tournay in Nurmaiidy,
or Guscoign in France, when they were in the
king of England's hands, which were merely
Out of the power of the Chancery, which waa
Ibe jilace to endow the widow, icv. Theii
goevon, and sajs, it was rcHuUed hy thera,
that ncilher the alaiute of William the ad,
dc dimit canditianuMmt, nor of Ihe STih qf
Henry tlie Uih, of willa, nor any other general
act of parliament, did extend to ibe isle of Alan,
for the cause aforesaid. 8o tiiere il is held,
(hat fur a right in the ifle of Man, though U
was part ot the terrilorial dominions uf Ilia
crown of England, yet Ihat no suit wnuhl lie
inlhecnnrtofChanciry ; and that this suit iO'
diluted by the widow fur htr dower there wiis
improper, and they could not culerlaiuil. Tba
caaca where iba courts uf Wealmiusicr hat*
i99J
li'-QfiORGfe III. AcHainJor FaUe impr^onvMnt—
[800
taken cognizance of transactioDs arising abroad,
and entertained actions founded on them, seem
to be wbolly on c«mtract8, where the lawa of
the foreign country have aj^reed with the laws
of England, and between Eiii^'lish subjects:
and even there it is done by a quaint lei^ral fic-
tion ; namely, by sup|>osing, under the sane •
tion of a videlicet, that the cause of action did
arise within this cotuiiry, and that the place
abroad lay either in London or in Islington.
But where the contrary has appeared, namely,
that the place where the transaction did arise
was not in Limdon or Islington, there the
courts have said such matters were not triable
here. There is a pretty strong case arising
upon a demurrer in Lutwyche, 946, Davis
against Yale. That was an action for false im-
prisonment of the plaintiff in Port 8t. George,
In the East- Indies, in parts beyond the seas,
Tidelicet, in Loudon, in the iiarish of St.
)^lary-le-Bow, in the ward of Cheap. It was
iresolved by the whole court, that the declara-
tion was ill, because the trespass is sup|)Osed to
be committed at Fort 8t. George, in parts be-
yond the seas, videlicet in London, which is re-
pugnant and absuid : and it was said by the
chief justice, that if a bond bore date at raria,
in the kingdom of France, it is not triable
here ; so that judgment was given upon the
ground, that it appearing upon the face of the
record to be in foreign parts, the supposition
that it was in England was absurd and re-
pugnant.
In Ward's case, in I^atcb. 4, in debt, the
plaintiff declares upon a bill, bearing date in the
parish of St. Mary-le-Bow, London ; and upon
oyer of the deed, it bore date at Hamburgh,
and the writ was in detinet only. Serjeant
Bridgman objected, that although it was usual
to lay such actions in any place, to wit, in
Kent, London, &c. yet as tnis case is, that
cannot be ; because when any place is named,
it shall be understood primi facie^ that the
place named is a town, and not a particular
place, as a .house, as appears by 3 Ed. 3,
68, et Brev. 638: from whence it fol-
lowed, that Hamburgh here should be un-
derstood to be a town, which cannot be in Lon-
don ; and therefore the declaration was faulty,
^r not laying Hamburgh wiil,>.i London. But
** *^^ *rgned on the other side by Barnei-s,
^no look this diflVrence in ph^ading : " I con-
Jeaa that a place named shall be understood to
•t>e a city or town, as the seijeant has said, but
^^i^eribcless the date of the deed shall be un-
^etatood to be a particular place or a house ;
^nd iliererore, if an obligation bears date at
x^^'wf'i' «»" Callis-Sands, it shall be under-
oftiioJm m <>^' '*"'*« taverns in London, and not
Andin th ^^^^ beyond the seas, 21 Edw. 4. 26.
SJac A ^ <^**<^*^"« Wighansand Flowers,
Atblooe'L^^ R the dale of an obligation was at
tot belJ-'^'^^^ lreland,and therefore the action could
1 ^OitU^ ^^ '»«''^» inasmucli as Ireland cannot l>e
CQ It Jr^^ "^^ • **"* *^ " ''•*' **'*" '"" Athlone only,
H»e^fi^^^«««lf'^***''**«tcouldbe8ued here, be-
" lone mightbe alleged to be in Eogland.
So here in our case, if the date had l»een at
Hamburah, * in partibus traiismarinis,' it could
not be Nued here, inasmuch as it could not be
in Loudon ; but bearing date at Hamburgh
only, it may be understood to be in England.*'
Whiilock agreed with him: Brook faits, 0,
and so have been all deeds by experience.
10 Jac. an obligation dated at Elvin was sued
in this court, and the action laid in Kent and
allowed; and yet Elvin is in Poland. Dod-
deridge said, ** I agree also, if the deed beara
date in Litile Britain or in Scotland, it shall be
understood to be dated at those places ; so bera
being named in London, we, as judges, ought
to maintain the jurisdiction of our court, if the
caKe is not plainly and evidently out of our ju-
ristliction : and f(»r this reason we ought to un-
derstand Hamburgh to be in London, to main-
tain the action, because otherwise it would be
out of our jurisdictiou. And if in truth we
should know the date to be at Hamburgh
ouster le mere, yet, as judges, we should not
take notice that it ia ouster le mere.'* In this
csRc it does appear upon the record, that the
offence complained of was committed in parts
beyond the seas, and not in £ui;land. Mr
lord, the plea states, that it was committed m
the island of Minorca, in parts beyond the seas;
these are the words of tne plea; and the de-
fendant has concluded his plea with a traverse,
that he was not guilty in London, in the pariah
of St. Mary-le-UoM, or el^eu here, out of the
island of Minorca. Now, my lord, this stands
admitted by the plaintiff, because if he had
thought fit to have denifd the place mentioned
ill the plea, and which was absolutely essential
for the detiemlant to mention, because his Joa-
tification was a local one, (and though the
cause of action be transitory in its uatiii^, yet,
if the defence be local, the defendant has a
right to state it so in his plea, and by that
means make that local which l»efore was
transitory,) he should have made a new assign-
ment, or have taken issue on the place.
It was incuniltent upon the defendant to
aver, that what he had done was within the ar-
raval, because his authoriiy was confined to
that particular place : and therefore, however
unjustifiable be might be elsewhere, he was
justifieil there. That part of his alleiraiina
stands admitted by the plaintiff; therefore it
does appear from the rec«>rd, that the cause of
action did arise out of the kingdom, and con-
sequently, as Dodderidge says in L<itch, it
does arise out of the jurisdiction of this court :
and where it so appears, the judges cannot
help taking notice of it; for, as Lutwyche
says, as I mentioned before, it is not triable
here. Even in cases the most transitory, be-
fore the statute of Jeofails, if an action waa
brought in London, and there was a local justi-
fication at Oxford, the cause could not have
been tried in London. That was the caae in
Ist Saunders, S47, an action for words laid ia
London, charging him with having stolen plain
out of Wadharo-College, vis. ia London. Thn
ddendaiit jostifiet speaking the wordSi bacaosa
Fabrigat v. Mostyn%
liMpUiaiilFllole plate out nr\Vai1hnm>Ci>11eKe
< ittloni. It wns Bitmilleil iu ItiM cmc, thai
I >■ iwld have been ■ fatal pmir, btil il nul b«eii
I r the ■ti.tuU uf ieohWa. Now the sutule of
)»(«l« duv* Dbi extern! to Minnrca ; tlK^rtfore
<t^ tave aiti aunil entiTelj' upon llie rommun
Iu ; and hj that Ihe trial ii bud, nnil ibe ver-
ni f dill : (or lapptnlittf that this or any court
u Wrttmiiider ciiulil holit cognixance of nny
Ruw that nrisM abrokd, yet it shnulil not ha*e
Uai liitil in Lonilnii, hut ahoulJ hare been
1 ilie next Knglisb coiinly tn Minorca.
A. D. 1773.
[Sftf
IfUic law
it, Uwl l«r a inuriirr coininilieil by a t'treigiier
■a aanUier ciiuiilry itie criminal could not be
Cnhol farre, 1 am al a \m* Ibr a renaoo why
AiNilil he puoiilie^ here tor ■ treipan com-
"" ■ fHider like circumalances. In orJer to
t that doetrine, this ahiuiilily muat be
d tbr : it' Mr. fttn&tyn, who siooil there
m Mpaciiy uf a noreraor, anil hail the sole
'''a ami ^Ternineut of \\\\* place, liad
I Falirii^e guilly of an otTence which
d his lite,«uil hall punished him accoril-
r, be coulil not have he«n |jiiDiabeil ; but
« hv ha* (trnceeileil in a milder wa^, aud
MtliriMneil anil banished him, tlivrelore be
. of enlerlaininir such
dlMt tn ibis country are utany, and some
■ waulit certainly be iniulerable ; but
(Qtild ensue from
nittg Ihe aciiuu woold be rcry sli^it,
■BT: aud (he argument, • ab inconreni-
k* nrd Cuke nays, haa beta ever allowed
t rery forcible in our law. Now if ibe
~ ba maiolaineil here, il must be deler-
by the taw of tbii country, or by the
' tlie nUc« where the offence was corn-
It it he driermineil by our law, Ihat
Id Iw utyual indeed; for Ihen a man, who
iD|iellnf Iu regulale his conduel hy one
wftQtd becondemned by anoiher, which is
'■" npfonW. Ami yet tlie law of thit
ia ihe law ibe jdainlilf has ihunictit tit
ibia cause upon ; and 1 ilonlil not bill he
■mder tli« idra of Enjibsh liberly, lo-
la dMruy ibe Mini>ri|uiii cnnatitulioti.
Mlaraliim ia futiudrd on the law of Eng-
TIm imprisonment ii laid in ibe dtcla-
_ to W oanirary to tbe law and cuaiotns of
nalm ; » that Ibe law of Eniclaiid is Ibe
ianhM-h be sppcali, and by wbieh lie de-
))>>(•*« may lie deli-rmined. If an im-
iNMal i* oammilled there aif re^able to Ihe
of thai place, bul noi I'onwiDant lo ibe
■fthit realm, is ibat a Krnand for puiiish-
ibis country ? If il ia nut, the plaiuiifl'
inpparl hi« case npon the law of Kii|(-
be manner ha now alteinpla to do. If
■■ to be tried here by the law of
■Dw in Ihat law to be proved!' There
fasal Bi'ide of certifyiPK the law, and lill
rial il may nut l>* known what points of
M may br rfpiiaile lo inqnire iiitni wil-
ts caitiKii be mmpelted to attend, nor can
cewrl by ainr lueaas ubligc them to answer
; ■» Ibe defcDdaot would lUud iu lb« lilua-
tion of beinff ealleil upon l<> make his itelencr,
without the power of profini; either the law in-
ihe fads of bia case. If Ibis acliou succeeds,
erery FrencbiDun Ibat iscoiiltoedinlheBaslile,
and has the t;ood thrlune afietwanls la etcape
lo litis country, would be brinuitt^ aelious
a^ninsl the ufli<^ers Ihal confloe'l biiu ; every
loldier, who in time of war ibinkd hiniaelf
ill used by bia cmnmander, when hp re-
turns home will barrass tbe comioander nilb
that be may hare suffered abroad ; and it> the
end it would lie nothing less then thai a Ger-
man army Mould he governed by an £ni;lish
jury. I( would be necessary Ibr every general
officer to have a lawyer always al bia elbow ;
and even that, aa Mr. Mnsiyn has found by
fatal experience, would not be sufficient 10 se-
cure hiro from censure and punishment: fur
in this cause it was proved, that Mr. Mnslyn
had consulted all Ihe lawyers, and all the mili-
tary gentlemen in the iaUud, on the expediency
and necessity of the measure be look, before
he did what is nnw complained of, and that
they were all unanimous in their Ideas uf Ihe
absniule necessity of the business. Some of
them openly prolesied ibeir opininna, and the
resi acquiesced by their silence. The lawyers
went further, and underlmik la answer Jiir tbe
legality of ibe measure, even at the [leril of
their heads.
In tbe second place, fnppnning an action
could be maintained here at all liir a thing
done in Minorca, 1 shall beg leave lo sub-
mit to yniir lurdahip, ihal whatever might b«
the case of other persona, lliuiigh they might
lie liable lo an action here fur things done in
foreign parts ; yet that thegovernor or general
officer, who baa the immediate command and
absolute direction of tbe place, aliall not be
called u|ion in an action here tn answer for bia
conduct in that character. Minorca is an ab-
solute govemmeni. Tbe guvcmur for Ihe
time being IB Ibe immediate representative of
Ihe king there; and he, al least within Ihe
arravalnfSt. Phillip's, whalever may lie the
case iu the rest uf the islnuil, as all absolule
sovereigns do, goveroa aabelbinkk cnnvenient,
without being tied np In any fixed rules,
There it ia nul lawful for him to deviate from,
which ia no garerament wbrrein Ibe |i«war
over the lives, as well as the liU-riie!i snil pro-
peniea of ihe aubjeirt, is nut lesied in the su-
preme power; and whether ibat |H>wer be
lodged in a ainule person, as s mt'iiarch, or
many, asa psri lament or an aristocracy, what-
ever ihat snprenie |>nwer dues, il is accountable
fur to none bul God ; aud ihe drpuiy uf ibtt
power is answerable unly lo God and his prin-
cipal. Thai a judge cannot be piinitbeil for
any ibtng be does in bis capacity as a judge will
not. I believe, lie diipulHl ; il it be. there ar«
Ihe strongest ■uiburiiiea ii(ion that |Kiii>t. Ths
atrongeal perhaps in Sslkeld, 39G, and 9 Mod.
318; iu Ihe latter of which cutit-s, ihi- jui'ge
had heeu guilty of the mi'sl iiii«Misiiiuiioiial
conduct. My lord, that in Nalkcld ia Grocnvelt
Bgaiusl Burnell knd ulbers. Tbe cau <iaa
IDS]
14 GEORGE IIL AdiM/or False Impritonmeni—
[204
this : the eensors of the Colle^ of Pbywciaiie
in London are empowered to inspect, go?em,
and oentare ell nractifers of physic in the city
of London, and seten miles round, so as to
ponbh by fine, amerciament, and imprison-
ment. They con? icted Dr. GroenTeltof ad-
ministering * insalubres pillules et noxia medi-
< oamenU/ and sentenced bim to a fine of 20^
nnd Id months imprisonment. Accordingly,
the doctor was taken in execution upon this sen-
tence, and brought trespass against the officers
nnd the censors. And it was bolden by Holt,
chief justice, first, that the censors had a judicial
power ; for a power to examine, convict, and
punish, is judicial, and th^ are judges of re-
cord, becaase they can fine and imprison:
iocondly, that being judges of the matter, what
they have adjudged is not traversable; and
the plaintiff cannot be admitted to gainsay what
the censors have said by their judgment, which
is, that they were ' innlubres pillulas et noxia
< medicaments,' 4dd £d. 3, 17, 9tb £. 4, 3,
IS Co. S4, 25 : thirdly, that though the pills
•nd medicines were really wholesome pills and
good medicines, yet no action lies sgainst
Sie censors, liecause it is a wrong judgment in
tt matter within the limits of theicjurisidictioQ ;
nnd a judge is not answerable either to the king
or the party for the mistakes or errors of his
judgment, in a matter of which he has juris-
diction. It would expose the justice of the
mition, and no man fi'onid execute the office,
at the peril of being arraigned by action or in-
dictment for every judgment he pronounces.
The other case, which is in 2d Modern, 218,
is as strong a case, if an action oouM be main-
tained against a judge at all, as any that can
exist : that is, an action for false imprisonment.
The defendant pleaded specially, that there was
a commiflsion of Oyer and Terminer directed
to him amongst others, 9cc. and that before him
and the other commissioners, Mr. Peon and
9Ir. Mead,* two preachers, were indicted for
lieing at a conventicle, to which indictment
they pleaded Not Guilhr ; and this- was to be
tried oy a jury whereof the plaintiff was one;
and that after the witoesses were sworn and
examined in the cause, be and his fellovrs
found the prisoners, Penn and Mead, Not
Guilty, whereby thev were acquitted ; and
^id the plaintiff tnali te getterit in acquitting
them both against the direction of the C^urt in
matter of law, and against plain evidence, the
defendant and the other commissioners then
upon the bench fined the jury forty marlcs
a- piece, and for non-payment committed them
to Newgate. This was a case where a judge
had taken upon himself to fine a juryman, be-
cause he did not find agreeably to his direction,
and had commjtted bim to Newgate. Setjeant
Goodfellow, wbo ewied for the defendant,
-aaid, he would not ofier to speak to that point,
whether a judge can fine a jury for girmg a
▼erdiet contrary to evidence, since the case was
<* See their Case, vol. «, p. 951, and Bn-
AdTi Case, vol 6, p. 999.
so lately and solemnly resolved by all the judges
of England in BuHnell's case, that he could
not fine a jury for so doing. But, says he,
admit a judge cannot fine a jury, yet, if ha
doth, no action will lie against him for so doing,
because it is donees a judge: but the Court
told him he need not labour that point, but de«
sired to hear the anrument on the other side.
In this manner the Court would not suffer the
question to be argued, whether an action would
lie or not against a judge for that which was
done by him in that character. On the other
side it was urged, that what was done was not
warranted by the commission : but at last the
whole Court say, that the bringing this action
was a g^reater offence than fining of the plain-
tiff, and committing him for non-payment;
and that it was a bold attempt both against the
government and justice in general. Cord Coke
in his 19th Report, 25, says, that the reason
and cause why a judge, for any thing done by
bim as a judge, by the authority which the
king has committed to biro, and as sitting in
the seat of the king, concerning his justice,
shall not be drawn in question before any other
judge for any surmise of corruption, except be-
fore the king himself, is for this: the kinjf
binnself is de jure to deliver justice to all his
subjecte ; and for that be himself cannot do
it to all persons, he delegates his power to
his judges, who have the custoily and guard of
the king's oath. And forasmuch as tuis con-
cerns the honour and conscience of the king,
there is great reason that the king himself
shall take account of it, and no other. My
lord, within thearraval of St Phillip's, general
Mestyn was ^iui/enii« judge ; there was no|Da«»
gistrate within the place but himself; he mighl
appoint another, or might preside himself, ta
decide upon offences committed within that
district, it was so stated in the record, that it
was subject to the immediate order of the go-
vernor, and no judge could interfere there un-
deputed by him ; so that ibe
particularly
lute ffovemi
1
absolute government of that part at least of the
island rested solely in his hands. He acted
there under an authority committed to him bj
the king, and there ( which is the reason in the
19th Report why an action will not lie against
a judge) he had the custody and guard of the
king's oath ; and therefore, as lord Coke sayf,
if he acts improperly in the discharge of the
functions of his office, he is accountable to the
king only, and no other. My lord, there m
another case in the Uw- books, upon which I
shall beg leave to lay great stress; and at
present 1 am not aware how that case will be
distinguished, so as to make it inapplicable Id
the present: but 1 can find many circumstancea
even in that, which are much stronger against
the determination there, than any that exist ip
this case against a determination in iavoar
of the defendant. The case I allode to ia
that of Dutton against Howell, in ShoweHa
Paribmeotary CaMs, t4 ; that iaa writ of emr
upon a judgment given in the King's-baach.
ne case ftam the KconI is ihii } IheplaiaMF
4
Fahrign) v. Muiti/n.
A Dutton, for thitl he nllh seve-
V BNaulteil, beu, wDuaileil. aoil ini-
d bira, aoil look anil seized hi* gnuils,
■isoDciI the |'l«>iitiir for tbree m<inU)i.
kpleiM lofirtQiit guilty, aoil as (olLc
R iuslilicattiiii,thDl llietMfnilaiit al
I* ifUrernnr of BurbaJoe*, auil hcIs
lit conMiliitio^ liini govcroar ; lliai
e RiftlitDg this |Mteiit, aiiil before the
f tiir MHUlt, the defendant arrived ■(
I, and did lake upon him and exercise
It of Ihil anil llie olher i^lBiids in
leal •ni'nlitnied, till the flrht of Miiy,
'' ~ "liKd licence to reluru to En|f land ;
I W departure h« consiiiuted tlie
* Im hi* deputy -gOTernor, and ihat llie
i)[ii*l fu11uwlii){ the delendant arrival
I, in England; tbutthe 4ih of May,
^M'l drpiniirp, the plainiilT took
If theadminiMralion of the govern-
e i«Und of Darl>Bilues, and did un-
tatfiiMy and arbilrsiily execute ihal gnietn-
mtat and nSiee, to the oppreMion of the kioc's
■utgrdti Iliatal\«r ibervturnof liiedef.-odani,
ill' liUirjiilT al a ri)»iicil wib charged willi
. i;r in Ihe adniinialnilinfinf bis olfice,
1-^ ibe OBlh of nffice, not obseriing'
iia*i(^iion, aMuming the tiile of
:^<>ii^riii<r and altering decrepB in
■ ~...r,, , ihat il was ihennrdered liy Iheile-
' .-Uut iiiid c«u aril, that 'the plaiutifT should
' Fomaiiilcd. Tu thi« ihere is a demurrer.
Tliti conn judgtneni was giren tar the plain-
I i on wUith a writ of eiror t»as brougiit in
I ■' Hmka of liords ; and though the parlicu -
ffftsana of the judgment Ju the Hunsa of
I rtM do not appear further than can be col-
-1^1 froo) lUe arguinenl, yet tliere are aereral
-y^ in tlic i^umeul, from whence it may be
li^rinJ UiHm what grounds Ihe jiid^metit of
' • Hoaae of l»rda wt^nt. It wasargued upon
' ;>arl <<f tlie plaiotilT In error, that tbiiaotion
ii;,'ain*l him, because it was broiiij:lit
. Igr lhat which he did os a Judge;
•' <-<<«'[ri« 10 be ibe lame for one sort
,;ii anolher, Bud tbst tlii« (lersoD was
.;., .tijilf a gniemor, end so had all the
■itii ul a goTL-Tiior. As lo the pl«a, it was
railicd lii«t« »erp seieral inli>rniBlilieBln lhat.
''- ••■••■14 it niirlit be much shorier than il
" 11 ; hut ibat il suflicieDlly >h«ned what the
1 otitr in error's auihortly was. Tlmt this
• untieUiMI lie, because the tact it not triable
• rt 1 III* laws Ihere iimj be diffrreiit from
. TU*id... Di, action Res, tlnlesi il ven a
' ..'ii< as well ni causeless;
i.'^.d lhat an action can
■....rnor or liL^utenant of
. >iiiill>v thesnine reoMDii
^iii 11:11 ir. ...i-.i.i»c. He had a poucrtc
rko ju<lc<a< 'ki>'l ilifrefore tvas more than t
V- Oib#r tnnoua alledgfii ii)raiiihi Iht
.MioD IviDg bc-re are, first, tiisi all tlm reeordi
<'.'] ctiiuMCi! ars ihrre ; secondly, Ihe lawi
li Tr difff* lh>m wlint Ihey are here ; and go-
''^aeaWwMiM he very neak, and die pet'
1 «tilb Ikeni eery uneasy, if
A. D. 1T75.
f«»
-ere anbjecl lo lie charged with actions here for
iliat tbey do in those countries. In the argu.
meut ou the part of the defendant in error,
h pains are taken to shew, and it is iusisled,
Ibaltlie lawof Barbadoea is the same as iheJai*
of England. Aaotherthincthatisiherereliedbn
lliat Ibis was an action between two EnKlish-
;n, for an injury done by one Enghslimaa
Bgoiualanotlter. Thesesronndsare strongly r«-
led upon on Ihe part of the then defendant in
rror ; and tbey ahew at least tbal his couusel
houghl these diBtinclions tery necessary antl
nslerialin order losupportlheacliun at all: for
(bough tl is denied in one part Ibat the jaws <^
BnrlraJoes were the same as in England, yet on
theeiher side ilisinslsled tbey were, and rhal tiu«
action arose belween Eiigllshmun and English-
man, and tlial therefore the aclinn iiuglit lo ba
maintained in Ibis court. The Bouse of Lords
Boally determiaeil lhat the aclion could not |ia
here, and the judgment was giren for tlie plaio-
4iff in error. A» lo tlie form of the plea, it was
impossible for any one to aay a word in (indi-
cation of lhat, or to say thai Ihe judgment
could go upon any other ground than llial of
ibe dclcndaot's being gnvernor, and the olTenca
comfilaiued of committed by him in lhat cha-
racter. ThAt was Ibe substance of the case,
and upon tbsl the judgmenl of Ihe House of
Lnrds was Ibanded j for os lo Ihe plea, il ia ad-
mitted by Ihe counsel for tbedetendaul, tbalia
other respects it was bad upon the lace of it.
In tiiBt case, one argument relied on is, lhat it
wai an injury commitled by one Engliihman
against another. Now ibat is not ilie ca«e
here : for the |i1alDliff himself was a Minor-
quia ; he iraa so by birth, and had always
lited in lhat country. My lord, in Ibis case,
tlie argument cannot bold, that llie aclion shall
lie because Minorca it governed by ihe same
laws OS England^ for it is olherwise, and it Ja
sUled lo be goferned by Ibe law of Spain,
The acts upon which the cnDiinilrnQnt was
founded, in the case of Dulton ami Uowtll,
Mere done by the iilainliff in the choracler of
gOTecnor ol the place, which is an ultjaclion
against that case that will not hold in the pre-
sent ; for that is not Ibis case. Mr. Fabrigas
neierstood in the cliaracler that the plaintiff in
thai aciioo did, for there the acts complained
of were done by him iii the characler of go-
vernor; andllut was urged as oneground why
il should not be caniassed here. Uut ueilber
of these distinctions will holil in the present
case i but all Ihe innnnveuienccs pointed out
against the action in thai case will hold rery
■troDgly in tlie preseul. This is an aclion
brought agaiail the detendanl for what he did
BB judge; be had 0 power 111 lhat case to mak*
judges there, and therefore be was something
more tlifin a judge ; all the records and evi-
dente which relate to the transaction ore there,
and cnnont be brought here) Ihe laivs tbera
are ditferenl from what they are in this coun-
try ; anil, as it is said in (be conclusiou of lhat
argument, government must be very weak in-
deed, and the. penon* intrusted wiih ibcmreij
807]
14. GEORGE III.
Actum Jor Fake Imprkonment*^
[SOS
^neisy, if they are tbbject to be chamd with
■ctiont here for what they do in that character
ID tbbse cuuDtries. My lord, iioless that case
can be materially distin^iiisbed from the pre-
•ent, it will be an authority, and the highest
authority that can be adduced, to shew that
this action cannot be maintained, and will be a
sufficient authority to entitle the plaintiff in
error in this cause to your lordship's judg-
ment What answer may be given to that
case, or distinctions made between that case
and the case now before the Court, I cannot
at present foresee ; but if any are attempted,
when I hear them, I shall be at liberty to give
•uoh answers to those arguments, as may occur
|o me by way of reply.
Mr. Peckham. My lord, as the moderation
end mildness of gOTemorMostyn's proceedings
have been insisted on by Mr. Buller, I trust
it will not be thought irrelative to the present
question, if 1 shortly state to your lordships
the nature of those injuries which gave birth to
the action.
It appeared in evidence on the trial, that Mr.
Fabrigas was a natural born subject, being
born m Minorca subsequent to the cession by
the Spaniards at the treaty of Utrecht, and
prior to the capture by the French in the year
1758 ; that he was a roan of irreproachable
eharacter and good property ; not of the first
class of nobility, but, to borrow an expression
from colonel Bidulph, ' what we should call in
England a gentleman farmer ;' that he lived in
firiendship with the first noblesse in the island ;
and that he had a father living, and a wife and
five children.
Thus circumstanced and thus situated, be
was at the express command of the governor
taken from his house by a party of soldiers,
end dragged at noon- day through the streets
ct' Mahuu as a criminal, and thrown into a
^lungeon appropriated solely to capital of-
iemiers.
It appeared likewise in evidence, that he was
eonfined six days in this dungeon, with no-
thing but the boards to lie on, and with no other
tustenaRce than bread an<l wattfr, though felons
under sentence of death were allowed the com-
mon ft>od of the island ; that he was refused the
consolation of his friends, and denied all inter-
course with his family ; that on the seventh
morning he was hurriiMl aboani a ship, without
being permitted to lake leave of his cliildren, to
eee his wife, er to he acconiiuotlated with money
or other uecessiaries for his subsistence ; that
during this wliule time he had heard of no
charge against him, he had been confronted
with no accuser, he had not even seen his
judge : yet he was to lie banished to Cartha-
gena in Spain for the space of twelve months.
The senteuce was faithfully executed ; and
Mr. Fabrigas, having experienced that distress
which a moneyless stranger must necessarily
lie reduced to in a country whose language he
did not understaod, as fortunately for himself
ft lUMzpeGtedly to go? ermr tt^pttyn, «icap«d
from the Spaniards : 1 say unexpectedly, my
lord, because he liule thought that Mr. ^«^
briifas would live to tell an English jury of his
sufferings and the governor's oppression.
I thought it necessary to state these fiiCts to
your lordships, that you might judire of the
mildness of that treatment which Mr. BuUer
deemed it prudent to expatiate on.
It now becomes requisite for me to state the
conduct of the governor through the subse-
quent stages of his very extraordinary defence ;
and that I must do with some precision, as I
mean to contend, that the plaintiff in error by
that defence is estopped from agiuting the
question of jurisdiction.
The declaration was delivered in Hilary
term, 1773 ; a rule to plead was given, and a
plea demanded. Had the governor then plead-
ed to the jurisdiction, the question would have
come before the Court on a demurrer ; and if
that had been determined in our favour, a writ
of enquiry would have been executed, and Mr,
Fabrigas would in a short space of time, at a
little expence, have received a satisfaction ade-
quate to the injury, and would have been en-
abled to return to his friends and to his family.
But that would not have answered the purpose
of the governor, as Mr. Fabrigas would not
then have been delayed in England, nor have
been harassed with this expensive litigation.
Had the governor at the ex|nration of the
four days piraded in chief, he might then have
had the appearance of an argument in his ap-
plication to your lordshi|>s ; for it then would
have been competent for him to have said, * I
was hurried into this plea before I had time to
advise with my counsel, and consult upon the
propriety of aclmitting the jurisdiction.' But
ne has debarred himself even of this shadow
of an argument ; for instead of pleading at
the usual time, he applied to the Court of
Common Pleas for six weeks time to pleaili
Here then was an admission ef tlie jurisdic-
tion ; for he could not apply for time to plead,
unless the Court had cognizance of the matter.
1 shall presently state to your lordships some
cases, whose authority cannot be shaken, to
prove, that even after imparlance the questioa
of jurisdiction cannot be gone into.
But this was uot the only submission to the
jurisdiction of the Court ; tor he then applied
t(» put off the trial till after Easter Term. It
would have been nugatory, it would have beeo
absurd, to have prayed the Court to put off
that trial, which they had no |K>wer to try at
all. When Easter Term arrived, the governor
made a second attempt to postpone the trial ;
but the Court saw through his design, and,
satisfied that he did it onl)^ for the pur|»ose of
delay, they lieil him down by the rule to try
it peremptorily in Trinity Term, and that be
should not bring a writ of error for delay.
When he saw the Court of Common Pleat
would not lend him their iMiwer for so Imse m
purpose, lie next made application to the Court
of Exchequer for an injunction to stay pvo-
ceediDgBi and a biU wu filed ia Trioity iW^
Tabtigat v. Mostyn.
a i&ctiule IhM iolcDtton ; bul the bill »*s
i-miaKd on arguinelil, Hnd the goTcrnor wu
.: k-oglb Jriiifii in the subsequent sitlinifs to
MiL f¥liRill.rMii«eCuneoii,the<lelenilHDl'B
notr) dU nnt nbjcti (o th« juriBrliciluii, ihey
oi oM requni ijie leuined juil|{e to nontuit
UipliiDbff; bul tli«y sufirrml us lo |[° 'dI"
biwl iiiacle fgooA our deula-
re tradable, they then went
bM Lbra jiutifieation, nail callpil manj wji-
■«■!• in auiiiMiTt nt' it. Biii a Tetdict beiag-
livul for Iha pkinlilT, they icnilfred a bill of
oeqplton* ; anil lu last Mirtiaelma* Term,
Ihrr apfiliMl lo tht courl of Cuuitnon Fleas fnr
a »ew Irtti ; lir«l, li>r exceM of darnairea ;
mtMid\y, btcaiue llie Court bad Dojutisdiction
— diB iDud exiiaordiiiary reaaon |jerbaps tbat
••« KBa \pf*a i la detire a seouiid trial b«-
noM Uie L'oiirl bad no juriBdiclioa lo trv it
MalL
Govmor BIuRtvn ha>'mf( m aa msDT in-
Hmm ■ admitted ine jurjiidiclion of Ibe Court,
I HMal bcf; leaie hi atnie some aulliorities lo
nsr Inrdnhiji, whith prove ihat be ia now loo
bit Id lake any adiantage of a defect of juris*
dcnaii.
TheftrsK^ielahall mention to yourlordshipa
• la W(«Mnd in ibeyear InokaJD tbe tsd H.fi,
.'-T,iiW»r«lhercTrBiuRiiecial imparlance, 'lalvii
. noibiia alte^tioaibus el eiceptinnibua, latn
it l-reie ijtiani ad narrBtionen'; and IbeCoorl
.iM iMt kIIdw ibe defeadaol'a privilege, be-
I'V, aaya the cnie, by imparling be has ad-
■ unl ifie juriidiclioQ of the Court. ThJH
■'.nat it cunGrmed by lord Coke, iu bis cnm-
'^1 on ibe I9Slh aeclioD of LilllptDn, where
;-ikm^ of a pCTEOiial action he says. Ihree
.n are. to be considered; first, whpn the de-
-''zalilcl'eudi Ibe KTODij and force, beinaketh
■^t»W • p*'ty to ibe mailer; aecooilly, by
-' dalfitcc bf the ilamagf!* he aflirnieih, that
-t I'Uibtiff ia able tu iiio and lo recover da-
vmftm upon just t-anie; and by Ibu latil parr,
ik. • M dial which he ought lo defend when
N^wiicn he aii{[bt,' bt aKrmelh the juria-
teka of the Cnurt,
The caMi of Barrin^oti and Tenablva, 13 C.
1. rvforlml in air Thomas tlaymood, 34, ii
•B3r dew on tbi* bead. The dclendnnt after
lapatlMicc pleaded lo the jurisdiction ; the
■toialtfl ilmiurred : the juif^menl was, that
laAoitld aaawer over, for such plea cBODOt be
phatlirf after imparlance.
The next caac in order of lime is repotted in
t Mmim, m, Coi and St. Albon's, 3S Car, 2.
i piahiliitiaM wu prayeil for the city of Lon-
li^ kteaoN tb« dttendant bad oHered a plea
b Ikt nriatietiun ivhieb had been refused.
ImA tUcT {nance Hale »ud, " in transilorv
tttiDaa, if ilarjr will plead a matter tbat ariselh
•dI «f iba JMrmllctiun, and swear it before im-
f»ikttot, aad it be refused, a prohibition will
pi." Tberv was n case, aitid bi-i lordship, in
•b«kil was ai)jitd)(cd Ihat the jurisdiblionmual
k alcadcd aod <be pica aworn, and it must
Infin-c toiparliwn. Il waa also agreed
A. D. 1775. 1910
in that caae, " Ihat Ihe party choold nefcrho
received to aui^n for ernir, ihal il was out of
the juiisdiclinn, but it muki be uleadrd." I
hare in rain endeavoured In find idii raw ; but
it ia sufficient for n>y purpone to nbnerve, Ihat
lord chief JRsIice Hale would not have died it
unless it had btvn law. If llierrfiiTe ihe opi-
nion of that Kreat man, solemnly given in the
eoiirl of King's-beocli, issuibriritr. I am Mi
In say. that jroverniir Itl-islyn ool havio); plead-
ed lo the jurisdiction, <:annut now assifpi il for
In a few year) after, lord chief justice Hale
was ai(ain called upon to cunijiler tbii qneslion
in the case of Maodvke anil Slint, 3 Modern
3T3, ea Car. 'J. There waa a prohihilion lo the
aheriff'a court of London : ihe Biiir^eation was,
tiial ihe contract waa made in Mirldleitex,
theretbre the cause of action did nut arise
wilhin their juriadiclion. The cliief jiisiice
and justice Wyndham were of opiomn, " ihal
after ihe delendant had admitted ihe juriidic'
lion by pleading !□ the action, eapecially if
verdict and judgment past, llie court will not
examine whether the cause of action did arise
oul of the jurisdiction or not ;" on which b
prohibition was denied, and judgment was given
for the plsinliS'. I cannot di«tint{iiis)i Ihi*
from the present case; for as Ihe Court will
not examine whether Ihe cause of acfi'in did
ariaeout of the jurisdiction, there can benn ilif-
ferCDce whether il was in Midrtlesex or in Mi-
norca; and that question cannot now be asked,
because verdict and jurigmenl have pawed.
Lord chief justice Holt, in Llie case of An-
drews anil Holl, iilord Kaymontl. 884, said,
tbat he was counsel in tlie case of Deoning and
Norria (reportnl in 2 Leviolz, S43} and ihat
the Court held there, "that since the deleo-
dant had admitled the judge lobe a judge by a
Clea t* the action, he was estopped to say, that
c was not a judge afterwards." If Ihen a de-
fendant, by having submilled the decision nf
his cause In a judjfe. precluded himself from
ohjecliog to bim afterwanls, bow much stranger
ia the present case, where the itefendaol baa
Eubmilled his cause to the determinatinn of a
court which haa cogni7:ince over all tranaitory
actions. It is again laid down by lord chief
justice rtoll, '■ that there ought to be no plea
to ibo jurisdictiiiD after imparlance, and Ihat a
apecial imparlance admila the jurisdiction. "
Holt's Reports, Pasch. S W. and M.
1 must trouble your lordibipa with the casa
of Trelawney and Willrams, toshew, thai thers
has been but one opinion on Imlh sides of the
hall respecling a plea to the juriidiclion ; and
that equity and common law bate united in
saying, tbat if the jurisdiction is ootpteaded to,
it must be afterwards admitted. This case is
reported iu 8 Vernon 1113, Hil. 1704. The
plaintiff prayed an account relative to a tin-set ;
ibedelrndant Iniisled that he ought lo have
been sued in the Stannary-court. The lord-
keeper decreed an account; nod aa to Ihe «b<
jecliim Ihat the plaintiff nui,'bt l(
the 8lau nary -court, be said, " '
SU]
14 GEORGE III.
Action Jbr False Imprisonment^-'
[212
of its jarisdiclion, the defeDdaot must plead to
the jurisdictiuD, and not object to it at the
hearing."
There are a great variety of casea tendini; to
establish this p«*8itioD, that when a defendant
has once submitted to the jurisdiction, he has
for ever precluded himself from objectinfif to it.
To state them all, after the great authorities 1
have mentioned, would be tf» multiply the wit-
sessei without strengthening the testimony : I
■ball therefore only site a few passages from
lord chief baron Gilbert's History of the Com-
mon Pleas, which are decisi?e upon this part
of the argument. In page 40, speaking of
the order of pleading, he says, " the defendant
first pleads to the jurisdiction of the Court ;
secondly, to the person of' the plaintiff; and
thirdly, to the count or declaration. By this
order of pleading, each subseqoeut plea admits
the former. As, when he pleads to the person
of the plaintiff, he admits the jurisdiction of the
Court ; for it would be nugatory to plead any
thing IB that court which has no jurisdiction in
the ease. When he pleads to the count or
declaration, he allows that the plaintiff is able
to come into that court to implead liiiii, and be
may be there properly impleaded." Be lays
it down in a subsequent part of his treatise (p.
148,) as a positive rule of law, that, ** if a de-
fendant pleads to the jurisdiction of the Court,
he must do it inttanter on his appearance;
for if he imparls, he owns the jurisdiction of
the Court, by craving leave of the Court for
time to plead jn, and the Court shall never be
ousted of its jurisdiction afler imnarlance."
IV hen 1 find tnis doctrine in our old law-books,
when I see it ratified in modern times, and
stamped with the authorities of Coke, Hale,
Holt, and Gilbert, 1 am warranted in saying,
that goveriHtr Moslyn cannot now agitate the
question of jurisdiction : and if he cannot, the
judgment must be affirmed.
Notwithstanding which, I have no objection
to follow Mr. BuTler through the grounds of
argument that he has adopted; and J shall
endeavour to prove,
That an action of trespass can be brouglit in
England for an injury done abroad :
That Mr. Fabrigas is capable of bringing
such action :
And, that governor Mostyn may be the sub*
ject of it.
It cannot be contended, but that an action of
trespass is a transitory action, and may be
brought any where : *< all personal actions,"
says lord Coke, ** may be brought in any
county, and laid any where." Co. Litt. 282.
In the earl of Derby's case, 12 Coke, the
chancellor, the chief juntice, the master of the
Rolls, and iustices Dodderidge and WiOch, re-
solved, ** that for things transitory, although
that in truth they be within the county pala-
tine, the plaintiff may by Uw alle<l:^e them to
be done in any place within England ; and the
defendant may not plead to the jiiriMliction of
the Court, that thev were done within the
muoty psUtifie." This doctrine is not coo*
fined to counties palatine ; for lord Coke, in his
comment on Littleton, $61, 6, says, ** that ao
obligation made beyond the seas at Bour-
deaux, in France, may be sued here in
England in what place the plaintiff will.**
Captain Parker brought an action of trespass
and false imprisonment against lord Clive, for
injuries received in India, and it was never
doubted but that the action did lie. Even at this
moment there is an action depending between
Gregory Cojimaul, an Armenian merchant,
and governor Verelst, in which the cause of
action arose in Bengal. A bill was filed by
the governor in the Exchequer for an injunc-
tion, which was granted ; but on appeal to the
House of Lords, the injunction was dissolved.
The supreme court of judicature, by dissolving
the injunction, acknowledged that an action
of trespass could be maintained in England,
though the cause of action arose in India.
The next point to be considered is, whether
tliere is any disability attending the person of
Mr. Fabrigas, that incapacitates him from bring-
ing this action. But it will be requisite for roe
first to state, that governor Mostyn pleaded not
guilty, and then justified what he had done by
alledging, that the plaintiff had endeavoured to
create mutiny among the troops ; therefore he,
as governor, had a right to imprison and ba-
nish him. Your lordship observes, that, ac-
tionling to his own plea, he does not pretend to
justify what he has done as governor merely
from the plenitude of his power, but from the
necessity of the act, because the plaintiff had
endeavoured to create mutiny and sedition.
The learned judge who tried the cause, fore-
seeing the importance of this justification, re-
quested the jury, at the same time they brought
in their verdict, to find whether the governor's
justification had been proved. The jury found
a verdict for the plaintiff, with 3,000/. damages,
and, that the plaintiff had not endeavoured to
create mutiny or desertion, or had acteil in any
way tending thereto.
In consequence of that decision, the question
now is, whether Mr. Fabrigas, a man perfectly
innocent, can bring an action against gover-
nor Mostyn for this wanton and unparalleled
injury ?
As the law grants redress for all injuries, so
it is open to all persons, and none are excluded
from bringing an action, except on account of
their crimes or their country. Littleton says,
there are six niaiiuer of peritons who cannot
bring actions : Mr. Fabrigas is not included in
either of those descriptions. The only persod
that can bear the least resemblance to liim is
an alien, who, Littleton says, to be incapaci-
tated from bringing an action, must be born oat
of the ligeance of the king. Lord Coke, in his
comment on that passage, observes, that ** Lit-
tleton saith not, out ot the realm, but out of
the ligeauce; for he may be bom, says Coke,'
out of the rtfslm of England, yet within tb«
ligeance, and shall be called the king's liege-
man, for ligeut is ever takea for a natond-bora
subject." Co. Litt. 129.
813]
Pabrigat v. Mottyh.
A. D. 1773.
rsi4
Mr. Fabrigas was boro in Minorca subse-
fMol to the ceaaioD of Spain, consequently be
if a iuuaral-born subject ; every natural-born
Mbiect, accordinnf to lord Coke, owes alle^ance
li me king ; allegiance impliea proit* rtii>n, the
iM is a necessary consequence tif tbe other ;
ihekiiigrof England can protect only by his
kai ; bv tlia laws of £ng:land tiiere is no in-
JHj willioot a remedy ; the remedy for false
■friaooment and banishmf*nt is an action of
fecipBsa, w bich is a transitory action, and may
be btoogbt an V where, therefore riiBrbil)* brought
m tbe city of London, where this action was
aeloalljr tried, and Mr. Fabri|pi8 recovered
3,0001. damages. I hope your lordtthips will
JHtii^ me in saying, that this is a fair deduc-
JilB men eatablisbed principles.
Coke (Co. Litt. 130), mentions three things
vbcraby every sdbject is orote cted, * rex, lex,
' et reacripta regit* ;* and he adds, ** that he
that ia out of the protection of the king, cannot
ka aided or protected by the king's law, or by
tbe bing's writ." The natural inference to be
dnwB mm thence is, that he who is under the
blag's protedion may be aided by the king*s
law, Mr. Fabrigas is under the king's pro*
Iselioo, because he owes him allegiance, there-
ktt be may be aided by the king's laws ; con-
ssfseoUy is warranted in bringing this action,
lbs only aid the laws of England can afford bim
fcr that injury.
Mr. Buller has mentioned the case of Pons
mk Johoaoo, lieutenant-governor of Minorca,
aM aeefna to rely on wbat was said by lord
faaden <mi that occasion. If my memory does
Ml aialMid roe, tbe plaintiff could not make
fiad bia case, being unable to prove Mr. John-
■i^a band-writing to the order for the fiscal to
flMBil bim, and the question of jurisdiction
ais not SLgitated ; but if it had, however re-
ijpsdable lord Camden's opinion ever will be,
m it was only the opinion of a judge at Nisi
hies. And according to Mr. Buller's own
Urie of tbe case, he makes lord Camden con-
ftsi, that an action might lie in a transaction
batween subject and subject. That concession
iisafficieot for me; for 1 have your lordship's
swa words to prove, that Mr. Fabrigas, being
hsn in a conquered country, is a subject.
Id tbe kinff and Cowle, 2 Burr. 868, your
Isrdsbip, apeaking of Calvin's case, said, ** the
fMStion was, whether the plaintiff Calvin, b<»rn
ia Seollaod after the descent of the crown of
England to king James the first, was an alien
hsm, and consequently disabled to bring any
ifal or personal action for any lands within the
italm of England ;'! and your lordship added,
** bat it never was a doubt whether a person
koni in tbe conquered dominions of a country
iisobieei to the king of the conquering couu-
ky." From this two points are gained : first,
tint Calvin, though born in Scotland, was not
•a aUeOy and might bring a real action ;• and
that there never was a doubt, but that a person
Urn in a conquered country waa subject to the
esaqveror. Aa therefore tbe twelve judgea de-
that CalFin could bring a real actiooy
I because . he was not an alien ; certainly Fa-
! briufas may bring a transitory action, as he ia
a subject, being bom in a country that waa
conq lereil by the state of Great Britain.
There is an anonymous case in 1 Salkeld,
404. 4 Ann. A bill was brought in Chancery
to foreclose a mortgage of the island of 8arke :
the defendants pleaded to the jurisdiction of the
court, viz. that the island of Sarke was governed
by the laws of Normandy ; and it was objected,
that the party ought to sue in the courts of the
island, an-i appeal. On the other side, it was
said, that if the person be here, he may be sued
in Chancery, though the lands lie in a county
palatine, or in another kingdom, as Ireland, oir
Barbadoes. Lord-keeper Wright over-ruled
the plea, saying, *< that the Court acted against
the person of the party and his conscience, and
there might be a failure of justice if the Chan-
cery would not hold plea in such a case, the
party being here." How much stronger then
is the present case ? for this is a transitory ac-
tion that may be brought any where; Mr. Fa-
bngas on the spot to bring it, and governor
Mostyn in England to defend it.
The case Mr. Buller has cited, of the
East- India Company and Campbell, admits of.
a short answer ; for had the defendant con-
fessed the matter charged, he would have con>-
fessed himself to be guilty of a felony ; and the
humanity of the laws of England will noi
oblige a man to accuse himself: but this is not
a pttbHc crime, but a civil injury. As Mr. Bul-
ler has gone to the East- Indies for a case, I
shall be excused mentioning the case of Ram-
kissenseat and Barker, lAtkyns, 51, where
the plaintiff filed a bill asrainst the representa-
tivea of the governor of Patna, for money due
to him as his banyan. Tbe defendanta plead-
ed, that the plaintiff was an alien born, and an
alien infidel, and therefore could have no suit
here : but lord Uardwicke said, as the plaintiff's
was a mere personal demand, it wss extremely
clear that he might bring a bill in this court ;
and he over-ruled the defiendant's plea without
hearing one counsel of either side. As there-
fore lord Hardwicke was of opinion, that by the
laws of England an alieu infidel, a Gentoo mer-
chant, the subject of the great mogul, could
claim the benefit of tbe English laws against
an English governor for a transaction in a fo-
reign country ; I trust that your lordships will
determine, that Mr. Fabrigas, who is neither
an infidel nor an alien, but a subject of Great-
Britain, may bring hia action here for an injury
received in Minorca.
The case^of the countess of Derby, Keilway
202, does not affect the question ; for that was a
claim of dower, which \h a local actipn, and can*
not, as a transitory action, be tried any where.
The cases, mentioned by Mr. Buller, from
Latch and Lutwyche, were either local actions,
or questions upon demurrer, therefore not ap-
plicable to the case before tbe Court; for a
party may avail himself of many things upon a
demurrer, which he cannot by a writ of error.
Mr. BuUer's endeavouring to confound Uraa-
SIS]
14 GEORGE m.
Ad^iomjar Fcise Jtnjpruenmtnt'—
[S16
■itorj with local action , must be my apoloey
for mcfDtioninflf another rate in iiupport of the
distinction. The case I ullude to is Mr. Skin-
ner's, which was referred to the tweWe judflies
/roin the council-board. In the year 1657,
when trade was open to tKe East- Indies, be
possessed liimself of a house and warehouse,
which he filled with ^oods at Jamby ; and he
purchased of the kinnf of Great Jamby the
islands of Baretha. The af^ents of the East-
India company assaulted bis person, seized
his warehouse, carried away his goods, and
took and possessed themselfes of the islands of
Baretha. Upon tiMs case, it was propouniled
to the judges, by an order from the king in
council, dated the 12th April 1666, whether
Bf r. Skinner could have a full relief in any or-
dinary court of law P Their opinion was, ** that
his mtjesty's ordinary courts of justice at
Westminster can - gif e relief for taking away
and spoiling his ship, goods, and papers, and
assaulting and wounding his person, notwith-
atanding the same was done beyond the seas :
but that as to the detaining and possessing of
the house and islands, in the case mentioned,
he is not relierable in any ordinary court of
justice."
Your lordships will collect from this case,
that the twelve judges held that an action might
be maintained here for spoiling his goods, and
aeizing his person, because an action of tres-
pass is a transiterv action ; but an action could
not be maintained for possessing the bouse and
land, because it is a local action.
I trust I have proved that an action of tres-
pass may be brought here for an injury re-
ceived in Minorca ; and that Mr. Fabri^, a
natural 'born subject, is capable of bnnging
•uch action. The only remaining question is,
whether Mr. Mostyn, as governor, can tyran-
nize over the innocent inhabitants within his
government, in violation of law, justice, and
umani^, and not be responsible in our courts
to repair by a satisfbctioii in damages the injury
be has done ? Mr. Buller has contended, that
general Mostyn governs as all absolute sove-
reigns do, and that * stet pro ratione voluntas*
is the only rule of his conduct. I did not ex-
pect to hear such an assertion advanced in this
court. From whom does the governor derive
this despotism ? Can the king delegate abso-
lute power to another, which he has not in
himself? Can such a monster exist in the
British dominions as tyranny uncontrouled by
law ? Mr. Buller asserts, that the governor is
accountable to God alone ; but this Court 1
hope will teach him, that he is accountable to
his country here, as he must be to his God
hereafter, ff»r this wanton outrage on an unof-
fending subject. Many cases have been cited,
and much argument adduced, to prove that a
man is not responsible in an action for what he
has done as a jadge. I neither deny the doc-
trine, nor fball endeavour to impeach the
casea ; but I most obeerve, that they do not
affect the present question. Did goTemor
Hoityn rit u jodginait? Did ke hear toy ac-
cusation P Did he examine a witnesa P Did he
even see the prisoner P Did he follow any rule
of law in any country } * Stet pro ratione vo-
luntas' was his law, and his mercy was twelve
months banishment, to an innocent individual.
As Mr. Buller has dwelt so much «|ion the
case of Dutton and Howell, it will be ex|»ected
that I take some notice of it. 1 need not go
over the case again, as it has been already very
accurately stated; but 1 must beg leave to
read the reasons which were given with the
printed case to the Lords, before it came on to
ne argued in the House of Peers. It is stated,
that sir Richard Dutton ought to have the
judgment that was obtained against him below,
reversed ; for
1st, That what he did, he did as chief gea
vemor, and in a council of state, for which he
ought not to be charged with an action. If he
shall, it may be not only the case of sir Richard
Dutton, but of any other chief governor or
privy -counsellor in Scotland, Ireland, or else*
where.
8. What was done, waa in order to bring a
delinquent to justice, who waa tried in BarSa-
doea and found guilty ; and if for this he shall
be charged with an action, it would ,be a dis-
couragement to justice.
d. What was done, was done in court; for
ao is a council of state, to receive complaieta
against state delinquents, and direct their triala
in proper courts. What a judge acta in court,
as sir Richard Dutton did, no action lieaagaioit
him for it.
4. There never waa such an action aa thii
maintained against a governor for what bf did
in council ; and if this be made a preoedeiit, it
will render all governments unsafe.
5. If a governor of a plantation beyond the
aeas shall be charged with actions here, for
what he did there, it will be impossible for him
to defend himself: first, for that all recordi
and evidences are tliere: secondly, the laws
there differ in many things from what they are
here.
Though the first part of this reason seems
to operate in favour of governor Mostjm, yet
it goes no farther than this ; that if an aetm
is brought here, it will be impossible for him
to defend himself. The latter part ahewa the
meaning of the whole; that is, if an action is
brought here against the governor for euj
thing done by him in his judicial capacity,
then he will not be able to defend himself, «s*>
cause all the records and evidencea are there.
This clearly proves, that it refers to what he
did as judge, otherwise there could have been
no occasion to have mentioned the reoor4p
being there.
These reaaons roust have been the grmiBi
of the counsers argument, and the whole is
bottomed in sir Richard Dutten's having acted
with hia council in a judicial capacity. I take
no notice of the arguments of counaH, as rt^
ported bjr Shower, because it can be no an-
tliority Ar thia court. 1 shall only ohacffTS^
that u reaped to the junsdidiooy wbieli mm
Fabrigat v. Mosiyn.
m tottcheJ on, Ihat tlie mu«rltoD uf
A tor ibe Uctendtnl iu errnr, Hfiirm-
wuJtctinn, ii he goul lUlliorily for
I uf ii by sir Uiohard Duiiod'e
r, biiller. Tlie repnrt ii gjkal
* ftriMinili ii4 Uie JudufDient; Jl onlj
Ibal the action wan rererseil;" liul
I vonl thni ilie BCliou ciiuld ont be
111 I teiilure lo ufBnii, Uial iliig
! Irwl rrtrinbluice lu Ihe pre-
M; duty calli OD roe lo dnvr the iuTi-
■ puvIIH.
mur DultuD ul wllh his oouocil, to
il «iii|uira iu the supreme cuurl of ju-
a llarbidoei :
ir Mtniyn »t neither *s ■ mililtry
il jud^e.
t. F«bfl|[M was not brau^ilil belbre him,
'It he Becuard by any man :
iililicly BccQKd be-
•n iaio B dimgeon,
nib tlie mom uiibeard-nrgeTerily;
nil) oDJy rooBiied for tne .
_ hilt |ieri>uo .
m biiiishedrarliTelTeiDniitbs
0 8|itni»b duiniiiioiiit :
jrJobn wM kriil in cualoily for 11 diys,
• MnU ba hroufjhl to bia trial ;
r. Fabriga*,oiitlje|;<>r«rnur'ijii«lilicAlian,
bund to lie lanoceni :
Sr John Wiiham, when bronchi beforr Ibp
wartor|{«ieralwsBioD>, woifouud ({uiliy.snd
The gavernor of Btkri'adoM followed Ihe iawa
rfBwiMloes'.
The KDTprnor nf MInnrca acted in dinme-
k«tJ opimfiliun tn all latrs. nnil in viulatioD of
is •MtmldicliilMof homaiiily:
Sa Ri^liard Duitou let the law take its
It out of bia way to
H>«iny abt-wM the dilTerenre betneeu the
i*a caB««, permit me In mmlion an obierra-
iii« of loint «birl*-juitic« <le Grey, \a bia nrii-
aam an Ihc malioo for a new trial. " If Ibe
C*>n«or liad tvcured lilm," said bis lonlthip,
" asy, if be bad Wrcly committed him, that lie
a hi ba*c been atntnable to jusiice, and if be
wnn>p<lial*ly ordm^ a proaecullon upon
uy wn '>( bi« i-nuduci, il would have been
asMbcr ijUMioD: bitt tbe cnveroor knew he
taaU DO morn tmpnsoa him Ii>r a Iweliemonlb,
(iind lb* liaBiahnwnl far a year i» a conlinualion
tl tbe ortcina) impriaoiimeni) Iban ibiit be
■MiU iaAtcl tbf t0it<ire."
La«4 cbiefguatice de Grey llitn undoubtedly
lb«agb( (bat Bo*«Tnor Moctyn had actetl ille-
ttUjf : ifao, I hope 1 nball be able to«bew,
iiiil bt H mffleiiable to Ibe courlaof law in
Lflrri MlBmnnt't ciae, iu 3 Salkeld 695,
' R. Pvek. IU W. $, evince*, tbat a ico-
rndrkbmad ■■ rMpoutihle here. "Tbeal-
' riiey-f •neral mnifd tor a Itial at bar ibe last
•,^4ky ■■ llie tattu, ia an Mtioa aKaiufl ilia
A. D. 177S.
[918
clUe
gOTemor of New-York, for niatlerdoneby him
as §;o>ernor, and sTanird, because Ibe Itingde-
fended it." I collect fi'am Uiie caw, that Ihe
Btlurney-||;eaeral knew ibe Court bad jurisdie*
lion, or be would not ba<e nude the motion ;
and tbe Court wonld nut haie granted It, if
they bail not been Icgully impowered lo Iry it.
The IdcitlHInre, in U>e aame year (13 VV. 3,
cup. 1^,) enacted, that govettntn beyund Ihe
sea iliould be tried in the King''a-beuch, or in
aucb cnuiily as shall be asiigued by bis ma-
jesty, by good anil lawful men, lor ofl'encea
cuainiitlcd in Ilieir govtfiimeols abroarl againit
Ihe kioi;'s suhjec Is there. Aa, by tbe common
law, ao' indiclineat could be preferred only in
that county where tbe offence was commiiled,
goveraiirs abroad were not crimiiiBlly amena-
ble llll Ibis act had passed. When the legisla-
ture so carefully provided la bring gorernon to
juitice for Ibe olTcnceB they mi|[bl cnmmil in
their governments, ihey would indisputably,
by the same law, have protested the suhjecla
from civil injuries, had ibey not bnown Ibat
aucb pRitiaioo was unnecessary, and Ihat, by
the common taw,^ [lersnnnl actions iDiiibt be
brought in Bnu'Und ; of which lord Betla-
In Michaehnas lerm, 11 Geo. 3, 1737, Ste-
phen Conner bmughl ao action iigainsi Joseph
Kslirne. KOternnr ul Gibraltar: aud be elated
in btH declaration, tliat he was a iimster c»t-
penler of tbe iiRice of ordnance at Gibraltar ;
ibnl e''ivernor S»hine tried hiiti by a cuurl-mar-
iial, Iu which be was nut sulijeci ; and that be
underwent the senlence of reoeiviog 900 laihes,
and that he was compelleil to depart from Gib-
raltar, which he taiil to his daniage of lO.OUOf.
Tbedefeudaiit pleaded Nut Guilty, and justified
hy Iryiu^ htm by a court-martial. There was
a verdict (br the plainlitT, with JOOl. damaf^cs.
A will of error was brnughl, and Ihe judgment
affirmed. No diilinclion cnn be made between
Ihe gnternnr of Gibraltnr and Ibe gorernor of
Minorca ; except only, Ibal the one tried Con-
ner by a court mnrUal, and punished him by
military law; while tbe other, without any
trial, banished Mr. Fsbrigas, contrary to all
ideas of justice and of law.
I masl now bej; leave lo advert lo t)ie bill of
exceptions; in which ilisalledgnt, thai •■ Mi-
norca is divided iuto four districts, elclusive vf
Ibe arraval, which Ibe wiineisei always under-
stood lo he diBlincI from Ibe others, and under
the immediate order of ihe goveruor."
I am well aware, lliat I am not al liberty lo
go out uf the record ; if I waa, the lact war-
rants me iu saying, that tbeeiiJciiceis moil
tt is iinlorioag that Minorca is divided into
four terminoxouiyi Cientadella, Alayur, Msr-
cadel, and Malum, which latter inrluiles tbear<
raval of Ht. Phillip's. Tbii is known tu every
man who has been at Minorca, and to every
wan who has read Armslrung's history of Ihat
island. Thai tbe guveronr has a legislailve
HUtbority within tbe arraval, is ton absurd lo
dwell ou. By what law, by what (truniion.
2I9J
14 GEORGE IIL
Actionjlr False Impruonment'^
rs2o
doet he elaina that power? When process is
ezecuteil withio St. PbillipX or its enrirons,
Ibe cifil magistrate asoall^ pays the gofemor
the complimeot of acquainting him with it ;
but the same compliment is paid to the com-
manUio^ officer at Cieutadella, where an ex-
clusive jurisdictioa is not efen pretended. In
fact, it is a matter of ciFility merely, but nef er
was a claim of right.
Lord chief justice de Grey in the solemn
opinion which he gave upon the motion for a
new trial, has been explicit on these two heads.
** One of the witnesses in the cause (said his
lordship) represented to the jury, that in some
particular rases, especially in cnminai matters,
the gofernor reudent upon the island does exei^
cise a legislatire power. It was gross igno-
rance in that person to imagioe sudi a thing :
I may say, it was impossible, that a man who
lired upon the island, in the station he had
done, should not know better, than to think
that the gOFemor had a cifil and criminal
power in him. The gOTernor is the king's ser-
vant ; his commission is from him, and he is
to execute the power he is invested with under
that commission, which is to execute the laws
of Minorca, under such regulations as the king
•hall make in council. It was a vain imagina-
tion in the witnesses to say, that there were
i&ve terminos in the island of Minorca. I have
at various times seen a multitude of authentic
documents and papers relative to that island ;
and I do not believe, that, in any one of them,
the idea of the arraval of 6t. Phillip's being a
distinct jurisdiction was ever started. Mabon
is one of the four terminos, and St. Phillip's,
and all the district about it, is comprehended
within that termino ; but to suppose, that there
is a distinct jurisdiction, separate from the
government of the island, is ridiculous and
absurd."
These were the words of lord chief justice
de Grey ; to which, 1 am confident, this Court
will pay a proper attention.
The bill of exceptions then states, that gene-
ral Mostyn was appointed governor bv the
king's commission, which gives him all the
powers belonging to the said office. I wish to'
ask Mr. Buller, whether to persecute the inno-
cent, and to banish those subjects committed to
bis care, is a power incident to or springing out
of the office of governor ? If it is not, the go-
vernor cannot justify himself under his com-
mission.
It is then stated, that the king ordered *< all
his loving subjects in the said island to obey
bim, the said John MosUn ;" but nothing in
particular is mentioned ofthe arraval. Had it
beeriji peculiar district, under the despotic will
of the governor, there must have been some
notice taken of it, either in the commission, or
in his majesty's orders. The governor then
confesses m his bill of exceptions, *< that he
banished Mr. Fabrigas without any reasonable
or probable cause, or any other matter alledffed
in bis plea, or an^ act tending thereto." JNot-
wiihatiuMiiDg which admiiiioD) in the very next
sentence, he inbists that the plaintiff ought to
be barred his said action, although it is stated
in the bill of exceptions, that *' the Minorquios
plead sometimes toe English laws."
Were the bill of exceptions less absurd than
it is, yet I should contend, that the governor,
by plc»ading in chief, and submitting bis cause
to the decision of an English jury, has pre-
cluded this Court from eoc|uinng into the ori-
ginal jurisdiction. Were it possible that this
ground should fail me, when supported by so
many great authorities, yet I should be very
easy about the event; for, as an action of tres-
pass can be brought in England for injnriec
abroad, and as every subject can bring that ac-
tion, and as governor Mostyn (Ijeing a subject)
must answer to it, I have no doubt but tba
judgment will be affirmed. Should it be re-
versed, I fear the public, with too much troth,
will apply the lines of the Roman satirist oa
the drunken Marius to the present occasion ;
and they will say of governor Mostyn, as was
formerly said of bim.
Hie est damnatns inani judicio ;
and to the Minorqnins, if Mr. Fabrigas should
be deprived of that satisfaction in damages
which the jury gave him.
At tu victrix provincia ploras.
Mr. Buller, 1 beg leave to trouble tha
Court with a few words by way of reply:
and though Mr. Peckham has thought nt to
declaim so much upon the particular facts of
this cause, yet I was confident at first, and do
not now find I was deceived in thinking, I
should not be contradicted in what I said about
the propriety of governor Mostyn 's conduct ;
that he bad taken every precaution^bat a maa
in his situation could do, had consulted many
persons there, civil and military, and that they
were alt unanimous in advising the governor to
do what was done.
The first objection made by Mr. Peckham
has been, that Mr. Mostyn should be precluded
from conteiiiliog that this Court hath not a jo-
risdiction, because he has submitted to the ju-
risdiction of the Court in so many instances
during the whole of these proceedings. He
has stated the whole proceedings during the
stages of this cause, by which he supposes Mr.
Mostyn hath done such acts as shall be <Mm-
strned into a submission to the jurisdiction of
the Court, and is therefore now precluded from
entering into the question. Further, Mr.
Peckham has insisted upon it, that at the trial
we did wrong in making a defence ; because,
if we meant to ^ into the question, whether
the Court Itas junsdiction or not, we should have
then insisted upon a non-suit, and not gone
into the merits ofthe cause. I do not appre-
hend any of the cases he has cited will come
up to the present : and as to the different pe-
riods of the cause, where he supposes we have
submitted to the jurisdiction of the Court, if
this Court hath no jurisdiction at all, 1 do not
know how it can then be mmI we have lubiiut-
»1]
Fabrigas v* Mottyn*
lei to it Siying, that at the trial we should
kove insisted upon a non-suit, is sayinff we
should have insisted upon what we could not
demand ; for it is at all times at the option of
the plaiiilifl', whether he will submit to a non-
IMI or mit. 1 1' the defendant can avail himself
tf the objection at all, it must be by entitling
liflBBrlf by that means to a ferdict ; for it is in
As power of the plaintiff to get up and say, I
till not be non- suited. It was impossible for
Bf to insist upon the objection in any at her
wsy than it is now done : the objection arises
•at of the facts of the case, and what was
BroTcd at the trial. It was there proved, that
Mr. Moety n was the governor ; that what he
M was in that character; and therefore,
■ys he, these facts being proved, 1 insist I
•« not answerable in a court of justice in
£oglaod, for what 1 have done in (hisch^trac-
tff : therefore the objection would have been
■Bproper, if it had come at any other time ;
it could only come when these facts appeared
is evidence upon which this objection was
ftooded. As to the many cases that have been
died, I bdieve I may safely give this general
isswer to them all : they are cases where an
•dioD has been brought in a court in England,
fir a transaction arising in England, but, on
aeeoont of a charter or statute, the jurisdiction
if the soperior court has been excluded. Where
thit ifl so, and this Court has a general super-
islcDdent jorisdictioD, but it is taken away by a
pirtiailar law, in such case it is necessary to
Ijhad to the jurisdiction: hot when the ques-
liM ariaes upon a transaction happening in
facign parts, and where the courts of England
aMMH liave any controul whatsoever, suppose,
iiinstaofse, in France, where the king or par-
fiiBeot of England can make no laws to bind
4e inhabitants, it is just the same as a court
if inferior record in England, where it holds
. plea of a thing done out of their jurisdiction.
■•that case, if it appears upon the proceedings
Uttt the cause of action arose out of the juris-
MoDo, the whole proceedings are void ; thpy
ire coram non judice ; aud an action will lie
•f^aiast the party, the officers and the judges,
Air what is done under them.
In this case, as I submit to your lordship,
the question is the same ; because it is not on a
Iraasaction happening within the limits, or
vithin the country where this Court resides or
bs a jurisdiction, but on a transaction arising
is foreign dominions. 1 beg leave to mention
<•«, that if these cases were so very general as
Mr. Peckham wishes to have them understood,
it if not possible that the case in Latch, or the
case iu L*utwyche, e^er could have existed ;
Weaufte, if it wa>« to hold as a general rule,
iktt where the cause of action arises out of the
kise(k»in you must plend to the jurisdiction, it
v«Mi(d have l>een a sufficient answer in those
tmts to say, it was not so pleaded. In tlie case
it Lotwyche, there wa.s a plea in bar, and de-
Siorrer to that plf»a ; but it ap|>earing, that the
Cum Iff action did not arise in this kingdom,
^ la foreign paru, the Court agreed; that the
A. D. 177S. t«S
supposition and quaint legal fiction, which
otherwise would avail, that it was in London or
England, was absurd, and the plaintiff could
not support his action. It was tlte same in tha
case hi Latch ; for that was not on a plea to
the jurisdiction, but the objection arose long
after, and in a subsequent period of the cause :
the judges there agreed, that if it appeared on
the record, that the case was plainly and evi*
dentlv out of their jurisdiction, they were bound
to take notice of it.
Mr. Peckham has divided his argument inta
three heads: first, whether a transitory actios
is capable of being brought in England, if tha
cause of that action arise beyond the seas : 8e«
condly, whether the plaintiff is capable of
bringing such action : and, in the third place,
whether the defendant is a proper object of it.
On the first ef these questions it has been in-
sisted, that an action of false imprisonment is a
transitory action ; and some cases dted, whera
transitory actions, arising abroad, are holden to
be maintainable here. An action of false im-
prisonment certainly is a transitory action : but,
my lord, the cases dted from IStb Co. and Co.
Lit. were not cases of aation for false imprison-
ment, but debt upon bond. These cases wera
where the law, in the different countries, was
the same ; and they therefore come within tha
distinction laid down in the case before lord
Camden. For, where the law of the different
countries is the same, this Court may hold
plea; it may do as much justice as the foreign
courts, and can he involved in no difficulty with
respect to the rules by which they are to de-
cide. But in the case of transactions arising in
foreign dominions, where the law of the foreign
country is different from the law of this king-
dom, this Court has no way of informing them-
selves what the foreign law is, nor can they
know what rules to decide by ; and therefore
every inconvenience arises against their enter-
taining such a suit. Mr. P^ham tlien cited
the case of Parker against lord Clive, in this
court, and observed, that there never was any
objection taken there, that the action would not
lie. That case is different from the present.
That was a case^between English subjects, and
a case that was ^ to be determined, not by the
law of the East Indies, (for that was not set up
as a defence, or at all intermixed with the case)
but by the law of England ; and therefore is
still within the distinction 1 have laid down
and endeavoured to support. Then the second
question Mr. Peckham has made is, whether
the plaintiff can maintain this action? The
plaintiff, he says, is not an alien, but a natural-
born subject, and as such he owes allegiance,
and is entitled to protection ; and that the king
of England can protect only by the laws of
England, and therefore this man has a right to
bring his action here. The proposition will it-
self shew how enormous it would be, if it were
to hold in this case. How is the king to rule
by the laws of England ? Is it meant that this
case is to be determined by the laws of Eng-
land ? If so, that would be injustice in the most
SS3]
1* GEORGE m.
Aclionjbr False Impriiovvifut —
fav ilie
I
I
ghring 1ig:ht; hecauoe it wiulJ becondnnitiiiK
ibe det'enihiDl by one lair, viXiva lie wm bound
to regulate lib cotiiluci by a different. But il
true that the kin|r ol Engluiil can prnl<ct
~ law* of England only ; for, in other
. a Iranxsclioo rouflt be tried by the laws
of that place where it arises ; and ibe king can,
Id Dllier (ilaces, goiern by other laws tlwn
those of EDiclaod: to J I contend, tliia quesllun
mutt be deleriiiined by sucli laws, and uot by
the laws of this country. Mr, Peckharo hm
then insisted, tbnl this is a case between siibjecl
mod subject. If lie ineanii il Is between subject
and sntyect. ipealtin]^ ol'ihe kiii|; of England.
it Is true; but FabriigM Is nut a aubjeci of Ibia
realm, nor subject to be gorerned by the laws
of this conn try, and therefure shall not avail
himielf of the lawi of Ibis country. The caae
ID Salkeld, 401, was then cited, w^ere IheCourt
of Chancery (iroceedpfl against a lnrel)j;oer ;
and the reaaon there giico lor so doine is, be-
cause that Court acts in penonaia. Bui, my
lord, that case does not appear to be at all
blended with foreign law ; nor ia any thing
ibere atatrd, which called on the Court (o de-
termine that case by any other law than the
known laws of thi^ country, and the rules of
their own court. The case in the 4tb losli-
lule was then eodearoured In be distinguished
from ihe present, by insisling, ihal the subject-
matler of Ibal case was loeaf: hut Ihai answer
cannot hold. If it had been an action In a
court of law, the answer would have been a
good one 1 because an action af dower Is local,
and can only be tried In the county where the
land lies; but that was a suit In Chancery,
and not an action ; and, as ia saiil In the case
cited from Salbeld, the Court of Cliincery
don't proceed against the thing, but against the
IKWin.
Then the last inealioa that has been innde is,
whether the deleodant in (his cast Is the proper
■ubjed of au action? Aly loni, Sir. Frcldiam
has observed, I said the governor wns absolute ;
but that he iusists is impossible, because there
is no person who could delegate such an autho-
. rily to him ; ibat If he derited such authority
from any one, It must be from Ihe king ; but the
king, out bring absolute himself, could not grant
warn BUlhorily to Mr. Slustyn. If it be meant
«nty, titat Ibe king is not obsolnte in this coun-
try, 1 mosl readily accede to the proposition ;
but what the cniislitutiou of this country is,
oaa be nv arguiuent to pro«e what is the state
«r consiitulion of Minorca. That Minorca la
«f A different caostitution, and ia governed by
different laws from what prevail iu this coun-
try, is staled In the record ; which record is
deciaive upon tbat point, fur the Court cannot
deiiart from it. It ut there iilaied, that the arra-
*al of 8i. Phillip's Is au<<ject to Ihe imiaediate
order of llie governor, and to his order and di-
ftclioa only ; for on judge, either criminal or
oiril, can Interfere, or has auy jurisdicti'iD
there, unless under bi» express leave; there-
fore the argument, as tn Ihe authority or power
«r lite king here, is luially foteigo to the silua-
P
lion of the gnvernor of Mil
or jurisdiclinn he has there.
it does not appear in the record, Ihat the «
fendant did act as Judge. This also must
decided by the record ; and it Is Ihiire slab
that ibe defendant was governor, snd so bei
gnvernor he caiiged the plaintiff to be taki
Imprisoned, &c. The case of Dulton
Howell has been much observed upnn. and t
printed reasons given iu thai esse parliculai
staled ; but I do not perceive the case bl
bet-n disling Ills bed from the present. Some
the reasons alledged for the defendant the
are equally strong In favour of the prei«nl (
(endanl. It Is said, there never was lucb
action maintained before; and If a goven
beyond sea be charged here, he cannot delii
himself, becniise all the records and evidec
are there. Mr. Peckbam has not been able
produce one rase, in which such an nclion
lliis has been maintained before. Itul lb
another ilistinclion he endeavaureil to a*
himself of is, Ihat, in the case of Uiilton s
llowel), ihe action was fur un act done In con
cil, and therefore varieil from this case, I
cause here there was nocouncil al all, I ca
not see hnw that difference will at all avail H
Peckham's client. In the first place, in Oi
hadoea, there was a conned, and ibe goven
had no power without the cnuncil ; but is tl
Ihe case heref In Minorca, there Is uo coun
at all; and therefore, in this case, the g
vemor stands in Ibe same siiualion (a I
governor and council of Barhadoes. As lal
neces^ly of pleading In abatement to the jut
diction, it is very observable, thai in the CIM
Outton V. Howell, the cuuOKel who argued
that cue do not venture lo rely upnn tMl C
Jection. But they insist further, that ibeJM
diction cannot be examined in ibe Bxcb«|l
chamber, because both the statute and wnl
error expressly provide agninsi II: and lbe_
fore, say they, it is questionable, whriher
can be insisted upon In the Ilniue of * '
and it is admitted by Ihera, that a quesli
might have been made on the trial of an iisi
if one had been joined. However, that qui
tlon was gone Into in the Huufc ol Lords, a
the 6nal decision of the cause appears fr
the book ; namely, that the jnilgiueni ii ~
case was for tbe ilef'endani, aud that the
could not be maintained. Then Ihe words
[I cbierjukticu de Grey, in this present <
>a a iiiolion for a new iriul, have been
relied upon i and his lordship la made lo
Ihat if the governnr had srcurerl the pr
Clainliff, merelj for tbe sake of a trial. It woi
9 a different affair. In Ibis case, 1 apprehi
uld be quite sufiicieiit (or me, il thi
vcrnur had a jiower of comotii
he bad, that Is suSicienl lo preveol thi
I'tiidant's being a IreapHSser by such
taeai : and the reason ablenei.8 of the time fat
hich be was ciiiumilK^, would be a very dif-
rent qiieslion ; for, if Ihe governor had a
, awer of cummiiling, he has pursued that
power, and tbca tbi« ■ciion cannot be uiaii-
Fahrigo) v. Moslyn.
Tbe Heart cate that b*H been ciied,
in ad SBlkeli], which w
agUMM a gotemur I'nr wliat he did
Meri bul thai is kimjily a motioD fur
Imt. Tbe merits of the
|wly »f ibe aciioii, wero not bttbre tbe
Uk or at alt enler«(l into ;
■ manle la tbe jurisdiciian nf the Cuurl;
'here a ibiog is DOt nbjecled to, the case
i-ner be na aulUortiy on ibe |>oint: there
' gae >}'Ilab!e isaid Hbuiit it ; and iherel'ore
i.-ise cautiM kave Ibe leut weigiit wbatto-
ici peeling this qjestion. Then Mr. Peck-
- I tbe statute uf the Vi\h of William
bat ibai »as admitled by him to ex-
In (n-imiDal prosecutiunsatlbeking's
jtmS ttkerefore can hate noihiog to do ulth
4r fKtot qaestioD. The case of Conoer
4piM Sabtite ia as dilTereot frnni this cuse, as
MNC ease caa be frura another. There the
Mace was uut upon the ground, that the
' - -ial. The
A. D. ms.
[236
ootolherwise: theystated a limited
yij^ctioa. and it appeared (be ptainlilf was
Wlbe object of that jurisdiction. Then it is
■y,[haL Minorca ia not a niihiary camp, hut
MikcT« are judges huth criminal and civil.
br f^ia I must hue recourse to the re-
adtatH', for there it is Etsied, that within
fctfiaral of 8L Philh|i'B, where tlii« Iraus-
MH Bcctirred, there is no jnilge either cri-
■mI ar civil ; there is no power but that of
k ptenwr. Mr. Peckhtun observed, that
*■ atfrd in the record, that the iubabitants
aaants ctaim jirotection from the law
4b(tan-l, as well as tbe law of S|iBin. It
• a ftalei); bul what is said further.'
titU tbey erer have it allowed In them,
*% Uii?y are governed by it; but it is
Vdj stated, that they are in genernl go-
MJby llie law of Spain ; therefore tbe re-
■Ifcei oat [irute, ibat Ibe people ii> Minorca
v^nnoedby the same laws as the people
'-. bM it does p rote, that they are governed
• t% ■rliich are tiiUlly diflereol, and that
. Ibe nrraval uf St. Phillip'*, the will of
rrrmtat is the law. Hr. Feckbam then
-kt ib« veiaciry of the record vrilh respect
-! ttStrtat disiricM which there are within
jalaaJ ; ami baa insisted, that though in the
- :ti«a of process, Sta. the law-oSicers may
' ill tbe ^tcmor, or inform him witat they
.-Has ta do, yet that ihey are nol bound by
10 du Ml, My lord, the record must, in
-K ce^wcu, aNo decide for us. It is there
xifd wbal the districts are ; that Ihe arraval
<* i*. Pbilhii'a is distinct from the others ; and
■ be executed there, without the
rnraar'a particular leave. Mr. Peckham
, a^ wtwre ia tbe authority that ennhli^s a
nnw to banish an innocent man? In ihe
a |he«, •■ to bis beioK an innocent man, it
t« oawprtent to this Court In ennuire whe~
«■ kc n> innoceDi or ool, or whether the
■vmnr was ttrictly jnsiihable or uot ; bul it
•Abrnt 10 prgTc, that the gOTeruoi bud i
authority to imprison. That authority appears
upon Ihe lace of the record ; for it is Ibera
staled iliBt he was governor, and had every
power, civil aud military, and ihat all he did
wav in the character of a governiir. I'liesa
lads lieioir proved, I snhtnii are a sutficienl bar
to this action, and ihe Court rannot go into tha
((ueHtiou, whether the plaintiff was iimuceni ur
guilty. The last argument that has been rrlieil
ujion by iUr. Peckham ia, some other esprev-
siuns of lord chief justice de Grey, in iha
course of this cause; in which his lordship
said, that the witnesses must have been mia*
taken in the account Ihey ga«e of the cimsti-
lulion and law of the island. Here it is im-
Cossible tor ilie Court to go out of ihe record ;
ut these ohservationa of lord chief jiislice da
Gre^ go certainly a great way towards proving
Ihe impmpriety nf maintaining «uch an aciioa
here as the present. If the account [fiven by
lord chief justice de Grey of the islanit be true,
aud I make nu doubt il ia, Ihe consequence ia
this : that even Ihough all the evidence was
obtained in this cause that could be had j
though persons were called as wilnesses, ivho,
from their sitimlinn, and the departments they
had officiated in, were most likely to be con-
versant with the law and conslilulioa uf the
island ; yet that all the acuoiiols that have been
given are imperfect, erroneous, and unworthy
of credit. That is tbe slmngesl evidence of
Ibe impropriely of malnlatDing such an action
as Ihis in England. For if, as lord chief jui-
tice de Grey says, the evideuce that has been
given of the foreign law in this case is not ta
be relied upon, bul is all a niistake; itmajr
happen, and it must naluialty he expected, that
in every case which is brought here from fo-
reign dominions, where the cause of action
arises abroad, all the cvideuce Is abroad, and
the Courl can get no other evidence of tlie law
of the place than Ihe loose opinions of ihoso
who have occasionally bten Ihcre; and ihe
courts here having no established legal mode of '
obtaining cerliticatea froia such country, pro-
perly HuUienticated, to say what the law there
IS, ttie same mistakes and inconveuienue will
Therefore, on the whale, I trust the Court
will be of opinion, that this action is improper,
and ought not to be niainiained here.
Lord Manifteld. Let il stand for anolhec
argument. Ii has been extremely well argued
on both sides.
On Friday tFie B7th January, 1775, it naa
very ably ii^ued by Mr. Serjeant Glynn, on
the part of Mr. Fabrtgas, and by Mr. Serjeant
U'alker, on behalf of govennr Moslyu : but as
no new cases were cited, we shall proceed to
give Ihe Judgment of the Court uf Klng's-
beuch, which was in substance as follows :
Lord Mamjleld. This was an nntion for an
ssanlt aud lalse imniisonmeni by the defen-
dant upDD the plainiilf. And part of tbe com*
Q
283]
U GEORGE III.
AtAonJbr Fahe Imprisonment^-^
[22ft
ghurinf light; becaoie it would becomteMunf
the defendant by one law, when he waa hoond
to regulate his conduct by a different. But it
is not true that the king of England can protect
bv the lawe of Enghmd only ; for, in other
places, a transaction must be tried by the laws
of that place where it arises ; and the king can,
in other places, gofeni by other laws than
those of England: and I contend, this question
must be determined by such laws, and not by
the laws of this country. Mr. Peckham has
then insisted, that this is a case between subject
and subject. If he means it is between subject
and sulgect, speaking of the king of England,
it is true; but Fabrigas is not a subiect of this
realm, nor subject to be governed by the laws
of this country, and therefore shall not avail
himself of the laws of this country. The case
in SalkeM, 404, was then cited, wliere the Court
of Chancery proceeded against a foreigner ;
and the reason there given for so doing is, be-
cause thtft Court acts in pertofuan. But, my
lord, that case does not appear to be at all
blended with foreign law; nor is any thing
there stated, which called on the Court to de-
termine that case by any other law than the
known laws of this country, and the rules of
their own court. The case in the 4th Insti-
tute was then endeaToured to be distinguished
from the present, by insisting, that the subject-
matter of that case was local: but that answer
cannot hold. If it had been an action in a
court of law, the answer would have been a
good one ; because an action of dower is local,
and can only be tried in the county where the
land lies; out that was a suit in Chancery,
and not an action ; and, as is said in the case
cited from Salkeld, the Court of Chancery
don't proceed against the thing, but against the
pemn.
Then the last question that has been made is,
whether the defendant in this case is the proper
subject of an action? My lord, Mr. Peckham
has observed, I said the governor was absolute ;
but that he insists is impossible, because there
is no person who could delegate such an autho-
.rity to him ; that if he derived such authority
from any one, it must be from the king ; but the
king, not being absolute himself, could not grant
such authority to Mr. Miistyn. If it be meant
only, that the king is not absolute in this coun-
try, I most readily accede to the proposition ;
but what the coustitutioii of this country is,
can be ncr argument to prove what is the state
or constitution of Minorca. That Minorca is
of a different constitution, and is governed by
different laws from what prevail in this coun-
try, is stated in the record ; which record is
decisive upon that point, for the Court cannot
depart fh>m it. It is there stated, that the arra-
val of St. Phillip's is subject to the immediate
order of the governor, and to his order and di-
rection only ; for no judge, either criminal or
civil, can interfere, or has any jurisdiction
there, unless under his express leave : there-
fore the argument, as to the authority or power
of the king herep is totally foreign to thesitna-
tioD of the governor of Minorca, or the power
or jurisdiction he has there. Then it is said,
it does not appear on the record, that the de-
fendant did act as judge. This also must he
decided by the record ; and it is there stated,
that the defendant was governor, and so being
governor be caused the plaintiff to be taken,
imprisoned, &c. The case of Dutton 9.
Howell has been much observed upon, and the
printed reasons given in thst case particulariy
stated ; but I do not perceive the case has
been distingubhed from the present. Some of
the reasons alledged for the defendant there,
are equally strong in favour of the present de-
fendant. It is said, there never was such an
action maintained before; and if a governor
beyond sea be charged here, he cannot defend
himself, because all the records and evidence
are there. Mr. Peckham has not been able to
produce one case, in which such an action as
this has been maintained before. But then
another distinction he endeavoured to avail
himself of is, that, in the case of Duttoo and
Howell, the action was for an act done in coun«
cil, and therefore varied from this case, be*
cause here there was no council at all. I can*
not see how that difference will at all avaU Mr.
Peckham*s client In the first place, in Bar-
hadoes, there was a council, and the. governor
had no power without the council ; but is that
the case here ? In Minorca, there is no council
St all; and therefore, in this case, the go-
vernor sunds in the same situation as tho
governor and council of Barbadoes. As to the
necessity of pleading in abatement to the juria-
diction, it is very observable, that in the case of
Dutton V. Howell, the counsel who argued ia
that case do not venture to rely upon that oh*
jection. But they insist further, that the juria*
diction cannot be examined in the Exchequer
chamber, because both the statute and writ of
error expressly provide against it : and there-
fore, say they, it is questionable, whether it
can be insisted upon in the House of Lords t
and it is admitteo by them, that a question
might have been made on the trial of an issue,
if one had been joined. However, that ques-
tion uas gone into in the Houi^e ol Lords, and
the final decision of the canse appeara from
the book ; namely, that the judgment in that
case was for the defendsnti and that the action
could not be maintained. Then the words of
lord chief justice de Grey, in this present cauae^
upon a motion for a new trial, have been mods
relied upon ; ami his lordship is made to say,
that if the govern' t had secured the present
plaintiff, merely for the sake of a trial, it would
be a different affair. In this case, 1 apprehend
it would be quite sofiicient for me, if the go-
vernor had a power of committing at all ; for if
he had, that is sufficient to prevent the dn»
feudunt's being a trespasser by such commit*
ment : and the reasonableness of the time for
which he was committed, would be a very dif>
ferent question; for, if the governor bad n
|iower of committing, he has pursued
power, and then this actum caonoi bo
10]
Fabrigas v. Motijflk
A. D. 1779,
[82S
tiioed. The next caie that has been cited, is
htd BeUamoot's case in 2<1 SalkelJ, which was
wm tctioa agaiasl a governor for what he did in
tkit cbaractflr : hot that is ftiniply a motion for
a tiial ftt bv. The merits of the case, or the
fnpriety of the action, were not before the
Onit, or at ail entered into ; nor was any oh*
JKiios made to the jurisdiction of the Court 4
mi where a thing is not objected to, the case
Oi nmrcr be an authority on the point: there
■ let one syllable said about it ; and therefore
tkt case cannot have the least weight whatso-
raspecting this question. Then Mr. Peck-
cited the statute of the 12lh of William
tbe third : but that was admitted by him to ex-
lad oohr to criminal prosecutions at the king's
sail, aod therefore can have nothing to do with
the preaeol question. The case of Conner
^fHHt Sabine is as different from this case, as
aa? oae eaae can be from another. There the
immw was pot upon the ground, that the
pbioliflr was amenable to a court-martial . The
6ci tamed oat otherwise: they stated a limited
' 'idiedon, aod it appeared the plaintiff was
the object of that jurisdiction. Then it is
that Minorca is not a military camp, but
that tbere are judges both criminal and civil.
Acre agaio 1 must have recourse to the re-
csri itself; for there it is stated, that within
the airaral of St. Phillip's, where this trans-
adiaa occurred, there is no judge either cri-
■iaal or ciril; there is no power hot that of
At governor. Mr. Peckham observed, that
it is staled in the record, that the inhabitants
SMMliaies claim protection from the law
if SogfoDd, as well as the law of Spain. It
ii as stated; but what is said further?
Kn that tbey ever have it allowed to them,
vibat they are governed by it; but it is
opreasly stated, that they are in general go-
Mned by the law of Spam : therefore the re-
cvri does not prove, that the people iti Minorca
Iff gorerued by the same laws as the people
hoc; bat it does prove, that tbey are governed
fty kws which are totally different, and that
viihia the arraval of St. Phillip's, the will of
the governor is the law. Mr. Peckham then
ttlMdu the reracity of the record with respect
Is the different districts which there are within
the islaod ; and has insisted, that though in the
tieeution of process, &c. the law-officers may
csasolt the governor, or inform him what they
lie going to do, yet that thev are not bound by
liv to uo so. My lord, tne record must, in
tbtae respects, also decide for us. It is there
ostid what the districts are ; that the arraval
of 81. Phillip's is distinct from the others ; and
Ihit 00 toagistrates can come there, nor can
I isj process be executed there, without the
ftveroor's particular leave. Mr. Peckham
ttkk, where is the authority that enabltfs a
|sv#mor to banish an innocent manf In the
te pfaice, as to his being an innocent man, it
b BOt competent to this Court to enquire whe-
ther be was innocent or not, or whether the
strictly justifiable or not ; but it
to profCi that the governor bad an
VUU XX.
authority to imprison. That authority app^rs
upon the face of the record ; for it is there
stated that he was governor, and had every
power, civil and military, and that alt he did
was in the character ot a governor. These
facts being proved, 1 submit at« a sufficient bar
to this action, and the Court cannot go into the
question, whether the plaintiff was innocent or
guilty. The last argument that has been relied
upon by Mr. Peckham is, some other expres-
sions of lord chief jtistice de Grey, in the
course of this cause; in which his lord<*hip
said, that the witnesses must have been mis-
taken in the account they gave of tlie consti-
tution and law of the island. Here it is im-
possible for the Court to go out of the record :
out these observations of lord chief justice de
Grey go certainly a great way towards proving
the impropriety of maintaining such an action
here as the present. If the account i^iven by
lord chief justice de Grey of the island be true,
and I make no doubt it is, the consequence is
this: that even though all the evidence waa
obtained in this cause that could be bad |
though persons were called as witnesses, who^
from their situation, and the departments they
had officiated in, were most likely to be con-
Tenant with the law and constitution of the
island ; yet that all the acconnts that have beea
given are imperfect, erroneous, and unworthy
of credit. That is the strongest evidence of
the impropriety of maintaining such an actran
as this m England. For if, as lord chief jus-
tice de Grey says, the evidence that has beea
S'ren of the foreign law in this case is not to
I relied upon, but is all a mistake ; it may
happen, ana it must naturally he expected, that
in every case which is brought here from fo-
reign oominions, where the cause of action
arises abroad, all the evideuce is abroad, and
the Court can eet no other evidence of the lavr
of the place than the loose opinions of those
who have occasionally been there ; and the
courts here having no estsblished legal mode of
obtaining certificates from such country, pro-
perly authenticated, to say what the law there
IS, the same mistakes and inconvenience will
arise.
Therefore, on the whole, I trust the Court
will be of opinion, that this action is improper,
and ought not to be maintained here.
Lord Mansfield. Let it stand for another
argument. It has been extremely well argued
on both sides.
On Friday the S7th January, 1775, it was
very ably argued by Mr. Serjeant Gl^^nn, on
the part of Mr. Fabrigas, and by Mr. Serjeant
Walker, on behalf of governor Most^u : but as
no new cases were cited, we shall proceed to
give the Judgment of the Court of King's-
bench, which was in substance as follows :
Lord Mamfield. This was an action for an
assault and lalse imprisonment by the defen-
dant upon the plaintilf. And part of the com*
Q
S27J
14 GEORGE ni.
AdUmfir False Imprisonment^^
[888
plaint beingf for IwDishinfj^ bim fnim the island
of Minorca to Cartha^feDa, in Spain, it was
Decesnary for the plaintiff to take notice in the
declaration of the real place where the c^use
of coin|ilaint arose ; which he 'has stated to be
at Minorca, with a videlicet in London, at St.
Mar>-le Bow. Had it not been lor that par-
ticiiJHrity, he mi^ht ha?e slated it to ha?e been
in the county of Middlesex ; but part of the
ctMnplaiiit luakinfjf the locality, where the came
of action arof>e, necessary to l»e stateil, being a
banish uieut fn)ui Minorca to Carthaafena, he
atates it with this videlicet. To this declaration
the df leudunt put in two pleas; fir8t,Mot Guilty;
and then he pleads, that he was Kovemor of
Minorca, bv letters patent from the crown, and
that the defeudant was raismjf sedition and
mutiny ; in consequence of which he did im-
prison him and send him out of the island,
which he alledgfes he hud an authority to do,
for that sedition and mutiny that he then was
raising. I'o this plea the plaintiff does not
demur, nor does he deny that it would be a
justification, in case it was true ; but he denies
the truth of the fact, and puts in issue whether
the fact of the plea was true. The plea avers,
Uiat the assault for which the action was
brought arose in the island of Minorca, out of
the realm of England, and no where else. To
this the plaintiff has made no new assignment,
ftnd therefore by his replication he admits the
locaHty of the cause of action. Thus then it
•tood upon the pleadings. When the trial
came on, the plaintiff went into the evidence of
his case, and the defendant went likewise into
his evidence. But, upon the |>art of the de-
fendant, evidence different from any fact al-
ledged in his plea of justification was given ;
and witnesses were called to prove that the
district in Minorca called the arraval, %vhere
the injury complained of was done, was not
within eitnerof the four precincts, but that it is
in the nature of a peculiar liberty, more imme-
diately under the fiower of the governor, and
that no judge of the island can eiercise juris-
diction there without an appointment from him.
That is the substance of their evidence.
The judge lef\ it to the jurv upon the facts
Af the case; atid they found for the plaintiff.
The defendant then tendered a bill of excep-
tions, upon which bill of exce|)tions it comes
before us. And the great difficulty 1 have had
upon both tliese arguments is, to be able clearly
to comprehend what question it is that is meant
•eriously to be brought before the Court for
their judgment. If I understand the counsel for
govarnar Hoatyn right, what they say is this :
the plea of Not Guilty is totally immaterial,
and the pka of jnstifiostion ia totally imina-
Ifffial, for it ap|w«ra oo the plainti&T's own
-^_ , ^^ ^1^^ matter arose in Minorca;
rapKcntloa to tha plea admita it : and
pIm appMn that the defendant was go-
af Jnam; and aa the inprisounent
hylhtfMllMrity of the da-
«i«kl la Inte Mopptd aU
kivt diiicied
I jury immediately to have found for the defen-
dant. Why ? There are three reasons given.
One of them insisted upon in the first argument
(but abandoned to-day) is, that the plaintiff h
a Minorqutn, born in the island of Minorca,
To dispose of that objection at once, I ahali
only ssy that it is wisely abandoned to -day.
A Minorquin ; what then ? Has not a fnlncci
of the king, born at Minorca, as good a right
to apply to the king's' courts of justice, aa a
person oorn within the aound of Bow-bell, in
Cheapsiite ? If there is no other objection to
him, would that make any ? To be sure not.
But it is abandoned, so I shall lay it out of the
case.
The other two grounds which are enforced
to-day are, if I take them right — but 1 am
under some difficulties, bi'cauRe they are such
propositions that you may ar^ue as well whe*
ther there is such a court existing as tliia which
1 am now sitting in — the first is, that he waa
governor of Minorca, and therefore for no in-
jury whatsoever that is done by him, right or
wrong, can any evidence be beard, and that
no action can lie against him ; the next is, that
the injury was done out of the realm : I think
these are the whole amount of the questiona
that have been laid before the Court. Now aa
to the first, there is nothing so clear as thai
in an action of this kind, which is for an as-
sault and false imprisonment, the defen<knty
if he hu any justification, must plead it;
and there is nothing more clear than that, if
the Court has not a general jurisdiction of the
matter, he most plead to that jurisdiction, and
he cannot take advantage of it upon the ge-
neral issue : I therefore, upon that ground, at
once lay out of the ca^ie every thing relative l»
the arraval; fi>r if he acted as a judge, it it
syuonimous to a court of record : and thonvh
it arises in a foreign country, where the tech-
nical distinction of a court of record doea nal
exist, yet if he sat in a court of justice, and
subject to a superior review, it is within the
reason of the law of England, which says,
that shall be a justification, and he would, if
he had acted according to the law of the land*
be entitled to a justification in the fact tliat it
complained of; but that must be pleaded. If
an action is brought against a person who it
a judge of record, he must lay it before the
court, b^ way of plea and justification, that Im
was a judge. 1 don't lay a stress upon the
' word reconi, but there is no colour upon the
I evidence that he acted as a jud^e of a court
'. of justice; therefore every thing stated re-
lative to the arraval, inhich is stated in the bfll
of exceptions, is nothing at all to the nurpoea.
The first point that I shall begin with is the
sacredness of the person of the governor.
■ Why, if that was true, and if the law waa aog
I he must plead it. This is an action of falac
imprisonment: prima facie, the Court Iih
junadictiou. If he was guilty of the fad, ha
must shew a special matter tiMt he did thia hj
a proper authority. What is hit proper an*
tlioritj P The lung'a cwniaittion to maka hia
m}
Fabrigat v. MoHyn,
A. D. 1773.
[230
pmxfMr, Why then, he certaioly must plead
t : but, howerer, I will not rest the answer
BpOB that. It has been sinj^led out, that in a
eshojr that is beyond the seas, but part of the
of the crown of England, thou((b
wonid lie for inioriea committed by
peraona, yet it shall not lie against the
iMUuor. Now I say, for many reasons, if it
il not lie against any other man, it shall most
■pfcitiraHy lie iqi^inst the go?emor. In e? ery
tlo the jarisdiction, you must state a iuris-
Mi ; for if there is no other method of trial,
Aat alone will give the king's courts jnris-
ielion. If an action is brought here for a
arising in Wales, yo\k must shew the
' m of the court in Wales : and in
sicry case to repel the jurisdiction of the
king's ooarts, you must shew a better and a
Mre proper jurisdiction.* Now in this case
IS other joriadictionf is shewn, eren by way
€ argument ; and it is most certain, that if the
lag's courts cannot hold plea in such a case,
mn is no other court upon earth that can do
It: lor it ia^truly said, that a governor is in the
Mara of a viceroy, and, of necessity, part of
At privileges of the king are communicated to
liAi durinff the time of his government. No
crisiiiial prosecution lies against him, and no
dvil actioo will lie against him ; because, what
wsald the consequence be P Why, if a civil ac*
lisB lies against him, and a judgment obtained
fer daaiages, he might be taken up and put in
man oo a Capias ; and therefore, locally, dur-
agtke tioie of his government, the courts in
Aeidaod cannot hold plea against him. But
b this peculiar case, it is said to have happened
■ the arraval. Why, it is stated in the evi-
iaee, that no judge can sit there at all with-
SAhia leave. If he is out of the government,
it ; he comes and lives in England,
be has no effects there to be attached:
ihere is no remedy whatsoever, if it is
■it ID the king's courts. But there is another
fcry atronir reason alluded to by Mr. Serjeant
CHJyno, which would alone be decisive. This
ii a charge against him, which, though a civil
\ has a mixture of criminality in it: it
lult ; which is criminal by the laws of
* As to this, see the Case of the hon. Robert
JahiMOii, 6 East, 583. See also the Case of
the KJnIoehs, vol. 18, p. 305.
f Speaking of lord Mansfield's judgment
ia tfaia case, Mr. Duller in bis long disquisi-
Isrial note to Co. Lilt. 391 a, Kays, ** wherever
a personal injury is doue to an English sub-
jpsi abroad, tbe remedy muNt he sought iu the
nrisdiction where the cause uf action hapiiens,
/ il ia subject to the king's jurisdiction ; if
'^ king has no jurisdiction in thai place, this
-^aarily gives the king's courts a jurisdic-
rithia, which it is brought, by the known
J of laying the venue in som^ county of
aaod. This is explained by lord Mans-
with his usual clearness and ability."
■r. Butler refers to Phill^brown v. Rvlaod,
dM. Lord Ray m. 1388, and 8 Mod. 354.
England, and is an abuse of that authority
S'ven him by the king's letters patent under
e great seal. Now, if every thing within a
dominion is triable by the courts within that
dominion, yet the consequence of the king's
letters patent, which gives the power, must be
tried here ; for nothing concerning the seignio-
ry can be tried in the place where it is. In tha
proprietary governments in America, they
cannot try any question concerning the seignio-
ry, in their own courts ; and therefore, though
questions concerning lands in the isle of Mwx
are triable in the courts of the isle of Man, yet
wherever there is a question concerning the
seigniorv, it must be tried in some courts in
EngUnd. It was so held by the chief justice
anamanv of the judges in the reign of queea
Elizabeth, upon a question arising concerning
the seigniory of the isle of Man. Or when*
ever there is a question between two provincea
iu America, it must be tried in England by
analo|fy to what was done with respect to the
seigniories in Wales bein^ tried m English
counties ; so that emphatically the governor
must be tried in England, to see whether he
has exercised legally and properiy that autho*
rity given him by the king's lettm patent, or
whether he has abused that authority, contrary
to the law of EngUnd, which governs the
letters patent by which he is appointed, iv, It
does not follow from this, that, according to
tbe nature of the case, let the cause of action
arise where it may, that a man is not entitled
to give every justification that ought to be «
defence to 4iim. If by the authority of that
capacity in which he stood he has done right,
he is to lay that before the Court by a proper
plea, and tbe Court will exercise their judgment
whether that is not a sufficient justification.
In this case, if the justification had been
proved, perhaps the Court would have been of
an opinion that it was a sufficient answer, and
he might have moved in arrest of judgment
afterwards, and taken the opinion of the Court ;
but the Court must be of opinion that it is a
sufficient answer, and that the raising a mutiny
in a garrison, though in time of peace, was a
reason for tiiat summary proceeding, in taking
him up and sending him out of the island. I
could conceive cases in time of,. war, in which
a governor would be justified, though he acted
very arbitrarily, in which he could not be jus-
tified in time of |)eace. Suppose in a siege, or
%%heo the French v^eregoinu: to invade Minorca,
suppose that the governor should think pmper
10 send a hundred of the inhabitants out of the
island, and that he did this really acting for the
liest : or suppose, upon a general suspicitm, he
should take )»eople up as spies: ^hy, upon
proper circumstances laid before the Court for
their judgment and opinion, it would be very
fit to see whether he had acted as the governor
of the garrison ou^jht, according to the law of
England and the ju!»tice of tbe case. But it is
said, if there is u law in the garrison, or if he
acts as the Spanish governor might have done
before, bow is that to lie known here?— Uow f
fSl]
U GEORGE III.
Actionjbr Fake Impritonment—
[89C
M'hy, there are ways of knomnar foreigfn laws
as well as our own, but in a diflTerent manner :
it must be |iro?ed as a fact, and in that shape
the court must assist the jury in finding oat
whnt the law really is. Suppose there is a
Frendi settlement (there is a case in point of
the sort I am stating) which depends upOn the
custom of Paris ; why, we must receive wit-
nesses with regard to it, to shew what the
custom is, just as you receive evidence of a
custom with respect to trade.
The judges in the courts of England do de-
termine all cases that arise in the plantations,
all ca8<(S that arise in Gibraltar or Minorca, in
Jersey or Guernsey, and they must inform
themselves by having the law stated to them.
As to suggestions with regard to witnesses, the
plaintifT must prove his case, and the court
must tuke care that the defendant is qot sur-
prised, and that he ha^ a fair opportunity of
bringing his evidence, if it is a case-proper in
other respects fur the jurisdiction of the court.
There may be some cases arising abroad,
which may not be fit to be tried here ; but that
cannot be the case of a governor injuring a
man, contrary to the duty of his oflSce, and in
violation of the trust reposed in him by the
king's commission. If he wants to send for
witnesses to prove his justification, and applies
to the court, they will do what'this court did in
a case of a criminal prosecution which arose
in Scotland. This court forced the prosecutor
([and would have put off* the trial from day to day
if he had not submitted to it) to suffer the wit-
nesses to be examined by a commission where
the cause arose, who could not be compelled to
come here. The court obliged them to come
into these terms ; or, if they did not, it is a
matter of course, in aid of a trial at law, to
apply upon a real ground, and not upon a ficti-
tious pretence of delay, to a court of equity to
have a commission and injunction in the mean
time; and the court will certainly take care
that justice shall be done to the defendant as
well as to the plaintiff, who must come with
witnesses to prove his case : and therefore, in
oery light in which I see this matter, it holds
empnaiically in the case of a governor, if it did
not hold in respect of any other man within
the colony, province, or garrison. But to
make questions u|M>n matters of settled law,
where there have been a number of actions de-
termined, which it never entered into a man's
head to dispute — to lay down in an English
court of justice such monstrous propositions as
that a governor, acting by virtue of letters pa-
tent under the great seal, can do what he
pleases; that he is accountable only to God
and his own conscience — and to maintain here
that every governor in every place can act ab-
solutely; that he may spoil, plunder, affect
their bodies and their liberty, and is accountp
able to nobody — is a doctrine not to be main-
taiaed; for if he is not aceouotable in thii
court, he is acooontable no*where. The king
ID council bat no jurisdidion of this matter ;
tb^caanotdo it ia aoytbapei Ibcy canool
give damages, they cannot give reparation,
they cannot punish, they cannot hold plea in
any way. WheiQever complaints have been
before the king in council, it has been with a
view to remove the governor ; it has been with
a view to take the commission from him which
he held at the pleasure of the crown. Bat
sappose be holds nothing of the crown, sup*
pose his government is at an end, and that lie
18 in Enghmd, they have no jurisdiction lo
make reparation to the party injured; they
have DO jurisdiction to punish in any shape tfale
man that has committed the injuij : how cnn
the arguments be supported, that, in an empire
so extended as this, every governor in every
colony and erery province belonging to the
crown of Great Britain, shall be al^lutely de-
spotic, and can no more be called in question
than the king of France P and this after there
have been multitudes of actions in all our me-
mories against governors, and nobody has been
ingenious enough to whisper them, that tbey
were not amenable.
In a case in Salkeld, cited by Mr. Peckbaro,
there was a motion lor a trial at bar in an ac-
tion of false imprisonment against the governor
of New- York ; and it was desired to be a trial
at bar, because the Attorney General was to
defend it on the part of the king, %vlio had taken
up the defence of the governor. That case
plainly shews that such an action existed ; the
Attorney General hnd no idea of a governor's
being above the law. Justice Powell says, in
the case of Way and Yally, in 6 >1uflem, that an
action of false'im prison II leut had been brought
here against the governor of Jamaica for an
imprisonment there ; and the laws of the
country were given in evidence. The gover-
nor of^ Jamaica in that case never thought
that he was not amenable. He defended him-
self. He shewed, 1 suppose, by the laws of
the country, an act of the asseinblv which j'lsli-
fied that imprisonment ; and the court received
it, to be sure, as they ought to do. Whatever
is a justification in the pluce where the thing is
done, ought to be a justification where the case
is tried. I remember (it was early in my time;
I was counsel in it) an action against governor
Sabine, and he was very ably defended. No-
body thought the action did not lie against him.
He was governor of Gibraltar, and he baiely
confirmed the sentence of a court-martial,
which tried one of the train of artillery by
martial law. Governor Sabine affirmed the
sentence. This plaintiff was a carpenter in the
train. It was proved at the trial, that the
tradesmen that followed the train were not
liable to martial law ; the court were of that
opinion ; and therefore the defendant was guilty
of a trespass in having a share in that sentenco
which punished him by whipping. There is
another case or two, but they don't occur to
me at present.
Let us see now what tiie next objection »,
with regard to the matter arising abroad ; and
that is a general ol^ection, that as the matter
trast nbnid, it cannot be tried hen in Bng*
tff\
Fttbrigas v. MostytL
A. D. 1775.
[SSI
had. There is « formal distinctioa tliat prt-
fiilt ID oar eourta, and ItkewiMe a subataotial
•w aa to the locality of trials. The substantial
dirtiactioa is, where the proceedingf is in
nm, and where the effect of the judgment
cnneC be had if it is laid in a wrong place.
His is the ease of all ejectments where pos-
flSBOQ is to he delivered by the sheriff of the
SMsty : and as trials here are in particular
SMSties, the offieeni are county officers; there-
kn the judgment could not ha?e effect if it
was Mit laid in the proper place and in the pro-
per county. But there likewise is a formal
fctiutlioD, where, perhaps, complete justice
cssM he done, let it be laid in what county it
■ight ; that is mere matter of form as to esses
that arise within the realm : but even with re
fud to matters that arise out of the realm, to
he sore there is a distinction of locality too ;
kr there are some cases that arise out of the
icahn, that ought not to be tried any where but
is tlie county where thev arise, as the esse al-
loded to by serjeant Walker. If there is a sort
tf fighting in France between two Frenchmen,
and ihey happen both casually lo be here, and
aa action of assault is brought by the one
agsiost the other, which chart^e a criminality
ISO, that it is dune against the kinar's peace,
aad the laws and customs of England ; in that
case it nsay be a very material question whe-
Ihtr that could be mamtaineil here: for though
it is not a criminal prosecution, yet it has that
sort of criminality that, perhaps, without giring
aa opinion, it ought to be tried by the laws of
that country where both parties are subjects;
it may he a substantial obj(*ction of locality. So
llewise, if it is concerning an estate in ^
favi^ country, where it is a matter of title
md not of damages, it roa}^ be a substantia)
teioction. There is likewise a question of
ftrm, and that arises upon the trial ; for trials
ia England being by a Jury, and the kinjj^dom
hnmg divided into counties, and every county,
ii respect of trial, considered almost as if a
aepvate kingdom or principality, it is absolute-
ly necessary that there should be some county
where the action is particularly brought, that
there may be a process to the sheriff of that
coonty, to bring a jury from thence to try it ;
and that is matter of form, which goes to all
cases that arise abroad. But the law makes
a distinction between transitory actions and
Iscal actions. If the matter which is the
caose of a transitory action arises within the
realm, it may be laid in any county ; the place
is not material: and if an imprisonment in
Middlesex, it may be laid in Surrey; and
though proved to be done in Middlesex, the
place not being material, it does not at all pre-
vent the plaintiff recovering damages : for the
eace of transitory actions is never material.
ut where, by particular acts of parliament, it
is made so, as in the case of churchwardens
and constables, and other cases that require the
action to be brought in the county ; there, by
the force of the act of parliament, the objection
li fttal: hot otherwise it mutt be laid in any
I
eonnty in England, let it be done where it will :
the parties bad an opportunity of applying to
the court in time to change the venue. But if
they go to trial without it, that is no objeo-
tion ; and all actions of a transitory natnre that
arise abroad may be laid as happening in an
English county. But there are occaaions which
make it absdately necessary to state in the de-
claration, that it really happened abroad ; as in
the case of specialties, where the date must be
set forth. When an action is brought npon a
specialty which bears a date, if that specialty is
set out, or if oyer is prayed of it, by which the
place where it was made must appear; if the
declaration states it to hare been made at WesI-
minster, in Middlesex, and ufNin producing the
deed it bears date at Bengal, ttiere is a variance '
between the deed and the declaration, which
makes it appear to be a different instrument. I
don't put lue case, though there are some in the
books that seem to me to have confounded the
statute of the 6th of Richard the second, there-
fore I don't put the objection upon the 6.th of
Richard the secoud ; but it goes singly u|kmi this :
if yon don't state the true date or true description
of the bond, it is a variance. W bat does the law
in that casef (and it has done it for hundreds
of years) Why, the law invented a fiction, and
has said, ** You ahall set out the description
truly, and then give a venue only for form for
the trial; videlicet ^ in the county of Middlesex^
or any other county you please." Did any
judge ever think that when the declaration
said, in fort St. George in Cheapside, that the
plaintiff meant that it was in Cheapside ? No ;
It is a fiction in form : every country has its
forms : it is for the furtherance of justice that
these fictions were invented ; to i^et rid of for-
malities ; to further and advance justice. This
is a certain rule : you never shall contradict
the fiction so as to defeat the end for which it
was invented, but you may contradict it for
every other purpose. Now this fiction is in-
vented barely for the mode of trial ; to every
other purpose you shall contradict it, but not
for the purpose of saying. You shall uot try it.
It is just like that qne»iti<tn that was long agi-
tated and finally determined some years ago,
npon a fiction of the teste of writs taken but in
the vacation, which bore date as of the last day
of the term. That is a fiction of the Court.
You never shall contiadict that fiction, and go
into the truth of the case, to destroy the wnt,
and shew it a bad writ. Why P Because the
Court invented the fiction to make the writ
good, for the furtherance of justice, that it may
appear right in the form ; but for every other
purpose in the world you may contradict it. I
am sorry to observe there are some sayings
which have been alluded to, inaccurately taken
down. Perhaps there were short-hand writers
in those days, as there are at present, who mis-
take every word they hear, and, being unable
to correct it, have printed it improperly : but
to say, that as meu they have one way of think*
ing, and as judges they have another, is an ab«
surdity. Ko; they meant to support the fio*
935]
n GEORGE III.
Action Jur Fake Imprisonment-^
[236
lion. I will meDtion a case or two to shew that
is the meanings of it There is a case in 6
HodeiD, 208, of Roberts aod Hama||re. The
gUuntiff declares, that the defendant became
oond to him at Fort St. Davids in the East
Indies at London, in such a bond. Upon de-
murrer the objection was, that the bond ap-
red to ha?e been sealed and delifered at fort
David's in the East Indies, and therefore
the date made it local ; and, bv consequence,
the declaration ouf^ht to have Geen of a bond
poade at Fort St. David's in the East Indies,
▼iz. at Islinjg^ton in the county of Middlesex, or
in such a ward or parish in Liondon ; and of
that opinion was the whole Court. You see
how this case is stated. But 1 wilt state it from
another book, where it is reported more truly ^
I mean in lord Raymond, 1042. There it is
stated thus. It appeared by the declaration,
that the bond was made at London, in the ward
of Cheap. Uiion oyer, the bond was set out,
and it appeared on the face of it to be dated at
fort St. George in the East Indies. The de-
fendant pleaded the Tariance in abatement, and
the plaintiff demurred, and it was held bad;
but the Court said, that it would have been
good, if laid at Fort St. George in the East
Indies, to wit, at London, in the ward of
Cheap. What was the objection there ? Why,
they had laid it fulsetv. They had laid the
bond as made at London. The bond is pro-
duced, and appears to be made at another
place : that is a variance. You must take the
iN>nd as it is. Then how do you get to trial ?
Wliy, introduce, a fiction, and the formality
fi'ifea you the trial in that county by the vide-
licet ^ and the bond is truly described. A case
was quoted from Latch, and a cage from Lut-
wyche, ou the former argument ; but 1 will
mention a case posterior in point of time, where
the Court took it up upon the true ground,
Dvliere both these cases were cited, and no re-
gard at all was paid to them ; and that is the
case of Parker and Crook, 10 Modern 255.
This was an action of covenant upon a deed
indented. It was objected to the declaration,
that the defendant is said in the declaration to
continue at Fort St. George in the East Indies ;
and npon the oyer of the deed it bears date at
Fort St. George ; and therefore the Court, as
was pretended, had no jurisdiction. Latch,
fol. 4. Lutwyche, .OG. Lord chief iustice Par-
ker said, that an action will lie lu England
upon a deed dated in foreign parts, or else the
party can have no remedy ; but then, in tiic
declaration, a place in England must be al-
ledged, proJomiA, Generally spec^king, the
deed, upon the oyer of it, must be consistent
with the declaration ; but in these cases prop-
ter neccssitatemt if the inconsistency be as little
as possible, not to be regarded : as here, the
contract, lieing of a voyage which was to be
performed from Fort St. George to Great Bri-
tain, dors im|>ort, that Fort St. George is dif-
ferent from Great Britain : and atUr taking
time to consider of it, in Hilary term the plain-
iiir bad his judgtncDt^notwitltttaBding the ob-
jection. Why then, it all amounts to this:
that where the action is substantially such a
one as the Court can hold plea of, as the mod«
of trial is by jury, and as they must be called
together by process directed to, the sheriff of
the county, matter of form is added to the fic-
tion, to say it is in that county ; and then the
whole of the inquiry is, whether it is an action
that ought to be maintained. But can it lie
doubted, that actions may be maintained beret
not only upon contracts, which follow the per-
sons, bat for injuries done by subject to subject ;
especially for mjuries where the whole that is
prayed is a reparation in damages, or satisfac-
tion to be made by process against the persoo
or his effects within the jurisdiction of the
Court? We know it is within every day's ex-
perience. I was embarrassed a great while to
find out whether it was really meant to make
a question of it. It is so in sea- batteries ; but
is It to be supposed that the judge thought it
happened in Cheapside, when the partjr proves
where the place was? In sea-batteries, the
plaintiff of\en lays the injury to have been done
\n Middlesex, and then proves it to be done a
thousand leagues distant, on the other side of
the Atlantic. There are cases of offences on
the high seas, where it is of necessity to lay
in the declaration, that it was done upon
the high seas ; as the taking of a ship as a
prize. A case of that sort occurs to my me-
mory : — the reason 1 remember it is, because
there was a question about the jurisdiction.
There likewise was an action of that kind before
lord chief justice Lee, and another before me, in
which I quoted that determination, to shew that
when the lords commissioners of prizes have,
given judgment, that is conclusive in the action ;
and likewise, when they have given judgment,
it is concluitive as to the coNts, whether they
have given costs or not. But how is that actioa
laid ? It is necessary to be laid, that his ship waa
taken or seized on the hiiih seas, videlicet^ in
Cheapside. Now is it seriously contended, that
the judge and jury, and counsel, who trieil the
cause, fancied that ship was sailing in Cheap-
side ? No ; it is plain sense ; the sliip was
taken upon the high-seas, for which an actioa
lies in England ; and you say in Cheapside,
which is saying no more than that, I pray this
action may he tried in London ; it is plainly
understood: but if you offer reasons of fact
contrary to the truth of the case, there is no
end of the embarrassment. At the last sittings^
there were two actions brought by the Arme-
iii Ml merchants for assaults and trespass in the
Esbt- Indies, and they are very strong autho-
rities. >-MJeant Glynn said, that the defendant,
Mr. Vert I St, was ably assisted. So he was;
and by men who would have taken the objec-
tion, if' they thuught it had been maintainable:
and that was atier this case had been argued
once ; yet the counsel did not think it could
be su|»ported. Mr. Verelst would have been
glad to have made the objection : he would not
nave lefi it to a jury, if he could have 6to|»prd
them short, and said^ '< You tball not try it al
837]
Tahrigat r. Mostt/n.
A. D. 177».
[«8
•U.'' I liATe had some actions before me, go-
isgralber further than these transitory actiuns ;
fut isy goiBg to caws which in Eugland would
It local actions : and 1 remember one, I think
h waa ao action brought against captain Gam-
Vcr, who by order of admiral Boscaweu bad
yaUed down the houses of some suttlers who
nppUed the navy and. sailors with spirituous
i|Mrs; and whether the act was right or
vroog, it was certainly done with a good in-
teatioD OD the part of the admiral, for the sai-
lors' health were affected by it. They were
palled down. The captain was inattentiTc
cBongh to bring the gentleman oTcr in his own
sh*p, who would never have got to England
stnerwise ; and as soon as he came here, he
was admed that he should bring an action
Minal him. He brought his action, and one
SI the eounts in the declaration was for pulling
dawn the houses. The objection was taken to
Ibe eoont for pulling down the houses; and
the case of 8kinner and the East India Com-
pany was cited in support of the objection. On
Ibe other side, they produced, from a manu-
seript note, a case before lord chief justice
Eyre, where he o?er-niled the objection ; and
I ofcr-niled the objection upon this principle,
that the reparation here was personal, and
Isr damagea ; that there would be a failure of
joslicey ror it was upon the coast of No?a
^ ' I, where there were no regular courts of
^ but if there bad been, captain Gambier
It nerer go there again ; and that the rea-
ssn of locality in such an action in England
did not bold in this case. I quoted a case of
aa iniory of thaiaort in the East- Indies, where
eiea io a court of equity lord Hardwicke had
fcecled aatisfaction to be made in damages.
Thai case was not fuUy argued ; but this was
aigiied, and there were larcfe damages gi?en
against Gambier. I do not quote it for the
apinioa 1 was of there, because that opinion is
my likeiy to be erroneous ; but I quote it for
ibis reaaoB, that there were large damages
fireo against captain Gambier : and though he
vaa not at the ezpence, for he acted by the or-
dera of admiral Boscaweu, yet the admiral's
RpresentatiTea paid the ezpence, therefore their
inelination was to hare got rid of that verdict if
they eonid ; but there never waa any motion
iar a new trial. 1 recollect anotbt* r cause that
on before me : that was the case of ad-
Pailiser ; there the very gist of the ac-
was local. It was for destroying fishing-
birta opon the liabrador coast, it was a nice
^ucstiuo; when the Canadians settled, and
when they had a right to it. It was a dispute
between them and the fishermen in England.
The cause went on a great way : the defendant
would have turned it short at once, if he could
have made that objection ; but that objec-
tion was not made. There are no local courta
among the Esquimaux Indians upon that part
of the Labrador-coast. Whatever injury had
been done there by any of the king's officers
would have been altogether without redress, if
that objection of locality would have held : and
the consequence of that circumstance shews,
that where the reason fails, even in actions
which in England would be local actions, yet
that does not hold to places beyond the seas
within the king's dominions. That of admiral
Palliser's went off ufion a proposal of a re-
ference, and ended by an award. But as to
tranaitory actiona, there is not a colour of doubt
but that every action that is transitory may be
laid in any county in England, though the
matter arisea beyond the aeas : and when it is
absolutely necessary to lay the truth of the
case in the declaration, there is a fiction of law
to assist you, and you shall not make use of the
truth of the case against that fiction, but you
oMiy make use of it to every other purpose. I
am clearly of opinion not only against the ob*
jections made, but that there does not appear a
question upon which the ohjectiona could arise.
The other judges declared themselves of the
same opinion, and the Court ordered, ** That
the judgment should be affirmed."
In consequence of the above judgement, on
Saturday the 4th day of February 1775, the
gentlemen who were bail for governor Mostyn,
to prevent his being taken in execution and
carried to prison, were obliged to pay to Mr.
Fabrigas the sum of S,000/. for his damages,
and 159/. which the Court amerced the go- .
vernor in costs.
I have not ventured to alter the nonsensical
passages in the former report of this case. The
case in Shower, which is alluded to in p. 115,
I suppose to be that of sir Richard Dutton
V, Howell and others, executors of Witham«
p. 24.
See the Case of Louisa Calderon «. General
Pictoo, B. R. A. D. 1809.
See, also, the following Case of the Island of
Grenada (Campbell v. Hall), and the Canadian
Freeholder, as therein cited.
SS9]
15 GEORGE IIL The Case ^f^e Island cf Grenada^ [flO
550. The Case of the Island of Grenada; in relation to the Payment
of Four and one-half in the Hundred of Goods exported there-
from;« between Alexander Campbell^ esq. Plaintiff, and
Wm. Hall, esq. Defendant, in the Court of KingVBenchy be-
fore Lord Chief-Justice Mansfield : 15 George III. a. d. 1774.
£The foUowiog acooont of this Case is com-
piled from the Reports of Mr. Lofft and Mr.
Henry Cowper, together with the short-band
writer's report of the Arguments of Mr. Mac-
donald (now Lord Chief Baron of the Ex-
chequer), and Mr. HargraTe. Both those
learned persons hare assented to the publi-
cation of this Manuscript, which was im-
parted to roe by Mr. Hargrave, with his ac-
customed kindness of assistance in the im-
proFement of this Work.]
This cause came on to trial before the right
honourable William lord Mansfield, on Friday
the 2d of July, at the sittings aRer Trinity
term, for the city of London, at Guildhall, when
a special Terdict was found. The proceedings
in the cause were as follows :
* Trinity-term, in the Idth year of the reign of
^ king George the third. «
* London to wit. Be it remembered, that
* heretofore, that is to say, in Easter-term last
* past, before our lord the king at Westmins-
^ ter, came Alexander Campbell, esq. by Ben-
< jamin Uosewell, his attorney, and brought in
* the court of our said lord the king then there,
* his bill against William Hall, esq. being in
< the custody of the mar&hal of the Marshalsea
* of our said lord the king, before the king him-
< self, of a plea of trespass on the case ; and
* there are pledges for the prosecution, to wit,
*John Doe and Richard Roe. Which said
< bill follows in these words, to wit, London, to
* wit, Alexan«ler Campbell, esq. complains of
* William Hall, esq. being in the custody of the
* marshal of the Marshalsea of our lord the
< king himself, of a plea [of trespass on the
* case ; and also] for that wtiereas the said Wil-
< lism, on the first clay of January, in the year
^ of our Lord 1773, at London aforesaid, to wit,
* in the parish of 8t. Mary-le-Bow, in the
< ward of Cheap, was indebted to the said
< Alexander in the sum of 20/. of lawful money
* of Great Britain, for the like sum of money
* by the said William before that time had and
* receif e<l, for and to the use of the said Alex-
< ander : and being so indebted, be the said
* William, in consideration thereof, afterwards,
* to wit, on the same day and yoar aforesaid, at
* London aforesaid, in the parish and ward
« aforesaid, undertook, and to the said Alei-
* ander than and there faitbfnilj pnHniieditluit
« be the said William wonld well and truly pay
' and satisfv the said Alexander the said sum of
* money wnenever he the said William should
*• be thereunto afterwards required. Yet the
< said William, not regardinic his said promise
* and undertaking, but contriTiog and fraudii-
* lently intending crsAily and subtilly to de-
< ceive the said Alexander m this behalf, hath not
< paid the said Alexander the said sum of money,
* or any part thereof, (althonffh the said Wu-
* liam afterwards, to wit, on the same day and
* year aforesaid, and often afterwards, at Lon-
* don aforesaid, in the parish and ward afore-
said, was by the said Alexander required so
* to do) but to pay the same, or any part there-
< of, to the said Alexander he the said William
< bath hitherto altogether refused, and atUI
< doth refuse, to the damage of the said Alex-
* ander of 20/. And thereof he brings bis
* suit, &c.'
'* And now on this day, to wit, on Friday
next after the morrow of the Holy Trinity, in
this same term, (to which said day the said
William had leave to imparle to the said bill,
and then to answer, &c.) before our lord the
king at Westminster, comes as well the said
Alexander, by his attorney aforesaid, as the
said William, by Robert Want, his attorney ;
and the said William defends the wrong and
injury. When, &c. and says he did not
undertake and promise in manner and form as
the said Alexander Campbell above complains
against him. And of this he putti himself upon
the country ; and the said Alexander doth the
like.
** Therefore let a jury thereupon come before
our lord the king on Wednesday next after
three weeks of the Holy Trinity, by whom the
truth of the matter may be better known, [and
who neither are of kin to the aforesaid Alex-
ander nor to the aforesaid William] to reco^
nize the truth of the issue between the said
parties, because as well the said Alexander as
the said William, between whom the issue is,
have put themselves iipun the said jury. The
same day is given tu the party aforessid.
** Afterwards the process being continued
between the parties aforesaid, of the plea afore-
said, by the jury between them being respited
(before our lord the king, at Westminster, enlfl
Saturday next after the morrow of All 8o>*
then next fulk»wing, aolM the *^*
tmsty and weH bderiw*
fidd, hie
CamphcU V. HaU.
W Mtie on F> iday the lil dny or July
C Guililhall uf iliR L'lly ul' Ijonilon, RCcnrd'
> lh(t Torm of Ihe sMtule in iticb ca»e
kmnd |ir<»iilc<1) Tar dernull of jurors, be-
^^» none of tbrni did appear.
" 4| wbich ilo^, bvrore our Inrd Ihe king'
« WpatrainsUT, cRine (he aroresatd Atexaodcr
CtApfaeH, by lh« saiil B^nJEimin Rnipwell, bis
flMney aturMihl, Arid tlie lajd cbicf justtce,
trftn <*b«nt iIh inii>> wh* iriid, smi liilber his
rvenrd had in thoe words, lo wir, '■ ■ After-
' varrfi, that n in say, nn the itny *nd at (he
■ftbee whyn ronturneil, beforp the righl
■ liOMWraMe WiOiani. lord M*intiv1<1, iheebief
■jadJM within written, John Way. suntlemftn,
'Wn^ naaoUted unio hln according to the
' bm or the dalnte In Ihat vane mide ind nn>-
' tried, femes an wHI the wilhin namei) Alex-
■ aaJer Campbell, emf. by bis itioroey within
' «wncd, ■<« Ihe wiiliin named Willlani HatI,
' et^. by his Dttornry u-ttbin menlioned.
■' ■ Ami the jarors of Ihe jury within men-
'led hrios sufflnioneil, soineol' ibem, that
■ to «y, Anthony Hitrhiiiore. Peler Bostock,
[iifid ('hsmbere, JaniPB L« Molle, John
«rltim-iiii, Jnshun Bedshew, and Siltanns
■ fifoi*. erne, and are sworn upon Ihni jnry;
' (oil lT,->ii«e ihe residue of the jiiror« of the
' Mine j'l'V dii not Bi'pear, Iherel'ore other per-
■ wfo^ "t lli'iie BtandiriB liy ibe court, by the
' (hrrifla of the city anil cntinty aforeaaid, at
' Ihcrrqursl of ihe said Alrxto'li'r, Bud by (he
' fDrnmaud o1' the sniil chid' justice, are now
■ •^•Ijf mH down, w hose names are fiW io Ihe
• ifbm wriliei) lunnel, aeeordini; to the form
u thct f
«..r r
■ .W WHieh sbM jumrs, so newly nel
<■■•«, ilml Is tn aay, Jol>n Lee, Willl^im Ker-
., Cbafin Huui^ham, John G<>riiMt]. and
'IrHurJ Hull, bein; required, come, whn,
ii;-lher with tlie uidniher jurors before i»n-
• ai«(|ed, anitswnm to declare the Inrtli of
c wiihin cootenu, being elected, tried, and
'•len, iipiin their oaths say,
' ' ThJiiheialtndorUrenada.inthe West-
l--i«». wa^tn Ihe iiosseaeioa of ihe French
Lirif until it WHS cnn(iuered by ihe British
I'-naiM 17*2. And timt during that posses-
■ ••■ lh«r<> "Vre certain CiKtoms and impost
rnrtadi^
) Bndool n
nnrted and e:
Nt MMlMrTly of hn inoit Christian majesty.
• m£ ihM in the said yew iroe, 'be said island
*«» eo»|wrcd hy the kitte nf Great Brilaln,
■MaiiA opM war with the French kini{; and
•Art ikaMud kslandoTtirenada ■un'cndcred to
'A* Bniish arm* upon the Kame article* of
■•■Inilallim aa had be^n befi>re i-ranted to Ihe
•wMtanunr ihe island of MuriioiM, u|ion
'lb* (BrrtBder ihertof lo the BHliih arms.
* Im* tbai in the ■nulet of capiliitatinD de<
■ a—ill hv and rranii'd tn the itihsbltanlf of
'ttPMidlaUMlul Maninico, upon iheaurren-
B Briihh arms, dated the
re Ihe tbllawing
tlia!lb«>triot<y
A. D. 177*.
[84*
' neuter, and shall nol be nliliifeil to tale arma
' against his most Christian mnjesiy ; nur even
' aflinsl any other power.
" ' Answer — They become snbjeciK of bis
' Briton Dtc majesty, and mtlil take theoalh of
' allfginnce, bul snail nnl I'e obliered to tuke
' Brma a^inst bis most Chrialiun inajesly until
' a peacb mat determine the l'«ie of the islnnil.
•■ ' Article t]le tilth— Thet shall pmerrelheir
' citil govermnent. their laws, eustiiiRR, ond
' ordinances ; justice kIihII be administered by
■the same officers who are now in eirploy-
' meot ; and ihere shall be a reifiilaiiiin made
* for the inleriur police between the noremur i>f
'his Britannic msjeslv end the iiihabilnnU:
* and in ease that ul liie pearc Ihe ii<[niid sliall
' he ceded to Ihe hinK of Great Britain, it shall
' be alluwed to the inlTsbilania In prnerre their
' polilical ^niernnient. and lo accept that of
' Anii(;uaorf<t. Chris- 0| .her'*.
" ' Answer— TTiey become Btiiish siiljerta,
' (as in Ihe inveedini; article) but MbaDcontiniie
• tn be pirerneil hy their present laws unltl hii
■ majeity'a pleasure be hnou n.
" ' Articlethe sixth- The inbabilniils, as atsa
' (be re)ii;iou3 orders, of bntli arxes, thill be
' niaintained in Ihe pr0|rerly of I heir eftecis,
■ mofeable and iinniOT<-ahte| of what natiir^
' soever, and shall be preferred in their privi.
< le^es, rights, hnnuurs, and exempliniis ; Ihei^
' free neirroes and mulatioes shall have the en-
' lire enjoyment of ibeii- liberty.
"' Granted, in rf[;ard to the rehgions orders —
'The inhahiiants.bein^siitgectsof Great Bri-
' fain will eujny tbeir properties, and llie same
' jtriTileges at in the other bis majesty's Lee-
■ Ward islands.'
" ' Anicfe (he seienlh— They shsH not pay tii
■ bis majealy brv oilier duties ttian those n hicli
' hove liecn paid bltberin to his moat Christian
■majesty; and the capilnli'Mi of negroes ujhiii
' the same roaiini; it is paTd at present, without
'flwy oiher dian^es or imposts: and the ex-
■ fences of insiii^e, peniiuns in curates, and
' other occasional e»iieocf a, abill be paid hf
• the domain of his Britannic majesty, as ihey
' were hy that of his mosi Obrislian mtijeily.'
" ■ Anawercd in the tixth^artide, as to whil
regards Ihe iohabitants.
" ' Article the elereolh— No other than iho
' inbabitanta resident in ibis island shall, till the
' peace, pmsess any eslBles, either by acquisU
' tion, aRTeement or ulherwi-ie : but in case ai
' Ihe peace the connlry shall be eedi-d lo (he
* king of Great Britain, then it shall be per-
I milled 10 Ihe inhabitants, who shall nol be
' willing to become bis suljects, to sell their
' Mtates, moTratrie and immnreable, in whom
> they please, ami retire where they sbill ihink
■ (iriiprr ; in which caie they ahail be alloweJ
■ eonveliieni lime. [ tnswer] All suhjecH of
■ Oieat Britain may |Kii«e«s any Innils or
• hniiies by purchase. The remainder nf ihis
■ article granted, ptoTided ihey sell to British
" And the juron afnresuid, n)inn their oaiha
aforesaiil funher say— That iu ibe deliutlire
B
213]
15 GEORGE .III. The Case of the Island of Grenada-^ [944
treaty of peace aud friendship between his
BriUDoic majesty, the most Christian king^
and the kinfi^ of Spain, concluded at Paris the
10th (lav of February 1763, amongst others
are the toilowin(f articles :
** * Article the fourth^His n^ost Christian
* majesty renounces all pretensions which he
* has heretofore formed or mi«<;lit form to Nova
* Scotia, or Acadia, in all its parts ; and gua-
* ranties the whole of it and with all its depen-
* daiicies to the king of Great Britain : more-
* over his most Christian majesty cedes and
' (guaranties to his aaid Britannic majesty in
* full right Canada, with all its dependancies,
* as well as the island of Cape Breton, and all
* the other islands and coasts in the gulph and
* river of St. Lawrence. And in general every
* thing that depends oa tlie said countries,
* lands, islands and coasts, with the sovereignty,
* property, possession, and all rights acquired
* by treaty or otherwise, which the most
* Christian king and the crown of France have
* bad until now over the said countries, islands,
* lands, places, coasts, mnd their inhabitants :
* 90 that the most Christian king cedes and
« makes over the whole to the said king and to
* the crown of Great Britain ; and that in the
* most ample manner and tbnu without re-
* striction, and without any- liberty to depart
* from the said cession and guaranty under
* any pretence, or to disturb Great Britain in
< the possessions above mentioned. — His Bri-
* tannic majesty on his side agrees to grant the
< liberty of the Catholic religion to the inhabi-
* tants of Canada : he will consequently give
< the most precise^ and effectual orders, that his
* new Itoman Catholic subjects may profess the
< worship of their religion, according to the
* rights of the Romish church, so far as the
* laws of Great Britain can permit — His Bri-
* tannic majesty further agrees that the French
* inhabitants or others who had been subjects
* of the most Christian king in Canada, may
* retire with all safety and freedom wherever
* they shall think proper, and may sell their
* estates provided it be to subjects of his Bri-
* tannic majesty, and bring away their effects
* as well as their persons without being re-
< strained in their emigration under any pre-
* tence, except that of debts or criminal* |>rose-
* cations. The term limited for this eroigra-
* tion, shall be fixed to the space of eighteen
* months to be computed from the day of the
< exchange of the ratifications of the present
* treaty.'
*< * Article the ninth — ^The most Cbristain
* king cedes and guaranties to his Britannic
* majesty in full right the islands of Grenada,
* with ihe same stipulations in favour of the in-
« habitants of this colony, inserted in tlie 4th
* article for those of Canada. And the parti-
* tion of the islands called Neutral is agreed
* and fixed ; ao that those of St. Viaoent, Do-
* minica, and Tobago, shall remain in fnll right
« to Great Britain, and that of St.. Lncia shall
' be deiirercd to Fr«Mtv lo
' tracting parties guaranty the partition so
* stipulated.'
** And the jurors aforesaid upon their oaths
aforesaid further saVf that his majesty, by his
royal proclamation bearing date at Westmin-
ster the 7th day of Octitber, 1763, amongst
other things declared as follows, * And whereas
* it will greatly contribute to the speedy settling
*oor said new governments that our loving
* subjects should be informed of our paternal
< care for the security of the liberties and pro-
' nerties of those who are and shall become in-
* habitants thereof; we have thouifht fit t(^
* publish and declare, by this our proclamation,
* that we have, in the letters patent under onr
* great seal of Great Britain, by which the said
< governments are constituted, given express
* power and direction to our governors of our
' said colonies respectively, that, so soon as the
* state and circumstances of the said colonies
* will admit thereof, they shall, with the advice
* and consent of the members of our council,
( summon and call general assemblies within
* the said governments respectively, in such
* manner and form as is used and directed in
* those colonies and provinces in America,
( which are under onr immediate goveniment.
* — And we have also given power to the said
* governors, with the consent of our said coan-
* cils and the representatives of the people, so
* to be summone<l as aforesaid, to make coo-
* stitutions and ordain laws, statutes and or-
* dinances, for the public welfare and good go-
< vemment of our said colonies and of the peo-
« pie aud inhabitants thereof, as near as' may
« be, agreeable to the laws of England, and
< under such regulations and restrictions as are
* used in other colonies. And in the mean time
* and until such assemblies can be called as
* aforesaid, all persons inhabiting in, or resort-
* ing to our said colonies, may confide in our
* royal protection for the enjoyment of the be^
* nefit of the laws of our realm of England :
* for which purpose we have given power under
* our great seal to the governors of our said co-
* lonies respectively, to erect and constitute,
* with the advice of our said councils respec-
' tively, courts of judicature and public justice
* withm our said colonies, for the hearing and
' determining all causes as well criminal as civil
' according to law and equity, and as near as
' mav be agreeable to tlie laws of England ;
* witli liberty to all persons who may think
* themselves aggrieved by the sentences of such
* courts in all civil causes to appeal, under tbo
* usual limitations and restrictions, to us in our
' privy council.'
** And the jurors aforesaid, upon their oaths
aforesaid, further say — ^That bis majesty by his
royal proclamation bearing date at Westmin-
ster, the <i6th day of Alarch 1764, amongat
other things did also declare as folkiws,
* Whereas we have taken into oar considers^
' tion the great benefit that will arise t6 th«
' oooiBMivo of oar kingdoms and the interasl
* of o«r snbfcctt, froon the speedy aectlemeol
* §f Ihi isliMs of QiiMdai Iha flimadimi.
Campbell v. Hall.
• Dnaaiaki. 81. Vincent aiid Tobago, we in
ititrefore ihink fit. wilti ih<? aitrire of riur
lairy eauDCJI, to iuue thi« our roytX procln-
ni^tiua. In jinlillBh aud declare to our loring
;. i 1 ttiat we Ijate wiib ihr «dticeor our
' I e iiuncil, given tlienecessBrv powers
I • riuHs foran immediate tai\ty,»aA
i ::, iiiiu projier piriilin and diitricti, of
' "'li of (he said iilanda aa liate not biiherto
'««■ noaurrFved and diiided ; and for laying
nil Mich laods in the laid islands as are in our
I'vwer to diapose of, intn allotinente for pUn-
tiuoos of dilffrent hixe und extent, according
' u tlw nature of the lanil «tiall be mnre or Iras
' adapted U> tlie growth of BU|tnr, culfpe, cocoa,
' oHtoa, or oilier articles uf bentAcisl ciil-
' uire ; TCEertint; to as, our lieirs and BucceaaorB,
' iLcti pans iif tlie said inlands as aliall be ne-
' 'nnry for erecting fortiRcatioos ilierenn, and
<r>r all DtliCf miliiBry purposes; for glebes
' 'ur miiiiiteri, aJlutmeats tor eg lionl- masters,
'ftr wood-lands, liigh'rnails, and all other
^^■^Cn pnrpnaes; and aUo resemng such
^^^■rfi in onr islanila of Dominica and St.
^^^^Mitlt aa at llie lime of the surrendtfr
^^^■n rad atjll are in the posaession of the
^^^KcmIi, inbsbitanti of ilie aaid islands ;
^^^■U hnda it is our will and pleasure should
^^^V cniil«il to such iif Ihe asiil inhuhiiants as
■ I^ImII be inclined lo ucuepl the asmc upon
' Wm for terms absohitu, or for renewable
-rma npon certain cuiidilinns, and under
ii oprr resirictiun*. And we do herehy farther
,'ubluih and declare, thai the allolmenta for
, iintatioiia In cur inlands of Grenada, Ihe
' . madines, Tobagu and St VinceDl, shall
-nlato IVnm uoe himdred to three hundred
.-res, with unine lew nllolments ioeach island
.' fire buaitred acres; ami that the allot-
fota in our inland af Dominica, whiab is
■Tuvamied to be nni au well adapted lo ihe
luiuralion of sugar, anri which from its
' Ml— linn require* in policy to be well peopled
I' rtlhtrbilc lahabitanU, iliili lie in eeneral from
'61^ lomnhandrMl acres. Thai each purchaser
*tf lawla which hare been cleared and im-
' anitA. (ball witliin ibe apace of three monlhs
il If of ihegrani seltleand constantly
<> liie Int iKirchueil one white man
'lite womKn, for every hundred
I >tn(d in the salU lot, and in default
' itwmf tball be suhject lo the payment of
'ML prr annnm f'lr e\eTy white woman, and
' tOi, |ier aoaum fur vvery while idso, that
*iWI iHt wanliotc to complete the number.
'Thtk Hi* putchaaerof itni'lpsrad lands shall
'dHrsoid culiisali! iioe acre in etery twenty
■laMnh year, until Imif the laud so purchased
■ AaB b* cImtviI, and in default thereof ihaM
> pjr il. p«r aBDum for erery acre not cleared
< patB«aut lo Budi eonditjon. And such pur.
' ^tmtt aliall alao 1m iiiili|{ed lo settle and on-
'MMljr ll*^ upon Uie lot so purchated on«
ixiulrBl aerca aa the same thall be cleareil.
I '111 auli puicb*>«r, bcaidea the purchase
tj, abkll Im 8ub|CGl to ibe payoicut of an
[546
A. D. 1774.
' anaual quit-rent lo us.our heirs ai
' of sixpence per acre, imder the penally of 61.
' per kcre upnn non-payment thrreuf. Such
' quit-renU iu Ihe esse of Ihe purchase of ulear-
■ ed lauds tn commence from the dale of the
' nTBnt. anil the fimi |myment to be made at the
' expiration of the first year ; and in caseof ths
■purchase of the uncfeared lands, auch qait-
' rents lo commence at the expiration of iweUe-
' months from ihe lime each acre is cleared.
* That in case of failure in the payment of Ibe
' pa re base money in Ihe manner above directed,
' the purchaser shall forfeit all right lo Ibe
* lands purchased.'
>■ And Ihe jurors aforesaid, upon their oaths
afuresaid, further say, that his majesty by bis let-
ters patent, under his writ nf prity seal bearing
dale, at Westminster, the 9th day »f April 1764,
appointed Robert Meicille, esq. vapiaio general
and gorerlior in chief in and oier the wlands of
Grenada, the Grenadines, Dominica, Si. Vio-
ceal, and Tobago, in America ; and ofall other
islands and territories adjacent thereto : which
said letters pnleot are as follows. — ' Georga
' the third by Ihc i;race of God, of Great Bri-
> lain, France and Ireland, king, delender of
' the faitb, &C. To our Irusiy and well be-
' lored Koberl MelTille, esq. greeting ; whereas
' we did by our letters patent under our ^reat
' seal of Great Britaio, bearing dste al West-
' mioBler, Ibe 4lh day of April, in the first jear
'ofunr reign, constitute and appoint Charlea
* Pinfold, esq. captain- genera I, and governor in
' chief in and over our islnnds of Barbadoes,
* St. Lucia, Dominii.'a, Si. Vincent, Tobagn, and
' the real of onr islands, colonies and planta-
■ tioniin America, commonly called or known
' by the naoie of our Carnbee islands lying
' andbeingtoibe windward of Guadaloupe, and
* which then were or after should be under our
< sulgectiuD and ifovernmetil, during our will
' and [ileasure, us by the said recited letters pa-
' lent, relation being ihereunio had, may mora
■ fully and al targe appear: now know you that
' wehaveretoktuland determined, and by these
* present* do revoke and di'termine, tucb part
* and so much of the said recited leiters patent,
' and every clause, article and thin^, (bereia
' cnnluined, as relates Iu, or muotiniia, Ibe
' island* of St. Lucia, Dominica, St. Vmeeut,
■ and Tobago. And further know you, ihat
> we, rrposini; especial trust and counilence in
* Ihe prudence, courage and loyally, of yoa
< Ihe said itnbert Melvdie.ofour ea)iecialgrace.
' certain knoitWge, suil mere molion, have
■ tlinught fit in cuiislituW and uppoinl, and by
■ Iheae presenls do cnnstitutr and appoint, ynu
■ Ihe Baid Hubert Melville lo be uur capUio-
' general and governor in ubief. in and over one
' islands of Grenada, the Ureaadines, Uomi-
■ nica. Si, Vincent, and Tobago, in America,
' and of all ulher islands and territories adja-
■ cent thereto, and which now are, oi beretn-
'lore have been, tle|ieadcnt thereupon. And
' nc do hereby require and command you to
■ do and execute all ihings iu due msimcr, Ibat
' shall belong to your taid coDUOaDd, and tha
247]
15 GEORGE III. The Case ^the Idand qfGrenadi
trust we have reposed iu you according to the
several powers and directions granted or ap-
pointed you by tUis present coDiniissiou, and
the instruetious and authorities herewith
giren to you, or by suob further powers, in-
8tru«-tions and authorities, as shall at any
time hereafter l»e granted or appointed you,
under our signet and sign manual, or by our
order in our pri?y council, and according to
such reasonable laws and statutes as Aail
hprealter lie made and agreed upon by you,
with the acWice and consent ot the council
and assembly of ihe islands and plantations
under yuur gofernnnent, in such manuer and
form as is hereinafter expressed. And our
will and pleasure is that vou the said Robert
Mflville, do, alUr the publication of these oar
letters patent, and after the appointment of
our council lor our sa-d islands, m such man>
ner and form as is prescribed in the instruc-
tions which you will herewith receive, iu the
first place, take the oaths appointed to be
taken by an Act passed in ihe first year of the
reign of king George the first, entitled. An
Act lor the further security of his majesty's
person and government and the succession
of the crown in the heirs of the late princess
feiopbia, being Protestants; and for extin-
guishing the hopes of the pretended prince of
Wales and his open and secret abettors : as
alsu that you make and subscribe the declara-
tion mentioned in an act of parliament made
in the 35tb year of the reign of king Charles
the second, intitled An Act for preventing
dangers which may happen Ifrom Fopish re-
cusants.— And likewise that you take tlie
oath usually taken by governors iu the other
colonies for the due execution of the office
and trust of our captain-general and governor
in chief in and over our said islanila, and for
the due and impartial administration of jus-
tice.— And farther that you take the oath re-
quired to be taken by tiie governors of the plan-
tations to do their utmost, that the several laws
relating to trade and the plantations be duly
observed ; which said oaths and declaration
our council of our said islands, or any three
of the members thereof, have hereby full
power and authority, and are required to ten-
der and administer to you: and in your ab-
sence to our lieutenant governor of the said
islands, and to our lieutenant-governors of
eachof our said islands respectively, the said
oaths mentioned in the said act entitled, An
Act for the further security of his majesty's
person and government, and the succession of
the crown in the heirs of the late princess
Hophia, being Protestants, and for extinguish-
ing the hopes of the pretended prince of
Wales, and his open and secret abettors: as
also cause them to make and subscribe the
aforesaid declaration, and to administer unto
them the usual oaths for the doe- execution
of I heir places and trusts.— Aad ws do fiirtiier
give and grant unto vou the and RolNKt Mel-
ville, full power aaa tutfaorilgr fi
time, and il wy liat kBMtAi^
[S4S
' or by any other to be authorized by yea in
< this behalf, to administer and give ibm oaths
* mentioned in tht said act, for the finrtbar se*
* curity of his m^esty 's iierson awl goveniBieat,
* and the succession of the crown m the keirs
* of the late princess Sophia, being Protestants,
^ and for extinguishing the hopes of Ihe pre*
* tended prince of Wales, aod bis open aad
^ secret abettors, to all and every such persoa
* and persons as you sfaaU think it, u be riiaN
' at anv time or times pass into any of our said
' islands, or shall be resident or abiding there.
** * And we do hereby authorize and ioipower
* you to keep and use the public seal, which
* will be herewith delivered to you, or ahaH
* hereafter be sent to you, for sesling aU things
* whatsoever that shall p4ss the great seal of
* our said island.
*' * And we do hereby give and grant ante
* you the said Robert nelville, full power and
* authority, with the advice and constant of our
* said council to be apiminted as aforesaid, as
* soon as the situation and circumstances of our
' islands under your government will admit
* thereof, aud> when and as tdien as need sliaM
* require, to summon and call general aawm-
* blies of the freeboltiers and planters jointly or
< severally within anv of the islapds under your
* government, in such manuer as you in your
* discretion shall judge most proper, or ac-
' cording to such further powers, instructions
* or autliorities, as shall be at any tima here*
* after granted or appointed you under our
* signet and sign manual, or by our order ia
< our privy council.
'< * And our will and pleasure is, that the per-
* sons thereupon duly elected by the aiaior
' part of tlie freeholders of the respective pa*
* rishes or precincts, and so returned, shall be-
* fore their sitting uke the oaths mentioned in
' the said act entitled. An Act for the further
' security of his majesty's person and govem-
' ment, and the succession of the crown in tJie
* heirs of the late princess ijuphia, being Pro-
' testants, and for eztinGfuishing the hopes of the
' pretended prince of Wales, and his open and
' secret abettors : as also make and subscribe the
' aforementioned declaration, which oatha aad
' declaration you sliall commisskinate fit persons
* under the public seal of those our islands to
* tender and administer unto them : and uutU
* the same shall be so taken and subscribedi ne
' person shall be capable of sitting, tliougli
* elected. And we do hereby declare, that ue
* persons so elected aod qualined shall be called
' and deemed the assembly of that ishind within
' which thev shall he chosen, or tlie assembly
' ol' our said islands in general. And thai you
* the said Robert Melville, by and with the
* advice and consent of our said council aod
' assembly or assemblies, or the major perl of
' them, snail have full power and auUiority. to
* makoycoostitulet and ordain laws, statntea, aod
* ordinaocca, for the puhlie peace, wolfamp ondl
* gnodgoostOBientot oog said islands, jmstf
•ee
•adoTiho
Campbea v
Mali,
K MnI fa tlie benffit of
Wbicb nid lini, sulotea,
II to be repti|{>>Biii> I'ul,
■ n*]) be, Ki^reealile lo ibr bws and
■ •rihtanur kingdato al*Ore«t Britaia.
I] B>l sudi lawa, BlHlittH, arul ur-
wltal auiire ar durttioo toeicr,
« willun tbm muDtha dt luuDiir arier ibe
'■iiBiir thereol', tutitiniUed lo us, uuier our
'mti al mar »s'ui iaiauila. I'urour approbalinii or
' I Mllaw ce ol Uie (ame ; as ehu ilu|ilivBlca
'maaftty lb« next convcj'ancF.
■■ ■ Au<l ia ras« any or nil iiC ihe sajil liwa,
'Mtoles, auai orilinauun, ni>i U>rure cnnfirineii
'kf M, shall at ■oj' lime b« diva I ki wed, and
'M aypnH K«t. auU »o signifinl by ua, uur
'ban utd succwion, unikr ibeir siifuet or
' mga tauiual, M by nrJer of niir nr tlirii' iiriij'
■oaocil, auto >nu tkwsaul Kubtrt Alrlvillif, or
'■tbceuniiMiiiier ID cbief of ihe aaiJ ialandi
* !■ ibr Uiot beiii^;, ibcB lucb and so lUBMy of
**e B*ii) kws, siBtuiei, mnI oribnancefl, as
*«WI bar au iliHaltowed bimI nM apiirovpd, ihall
•fc^ ihmcelMlh cease, deterutiiie, and be-
*Maw Blirily toiJ and have nu eArct, anv
'^mt ■" tb« osolrary ihcreal'Doiwiibstiitiiliii|r.
** * itnil It! Ihe end Ihat nolhinn luiy be
' ■wrt in doue hy our said council or Rssem-
*liaa ID the prrjiubce of ui, our heira and «ac
' n«ui». we mil uikI onbin thpl you. the aald
' H-Wn Mrltdre, bhall dure and enjoy a nega-
* tn< mioe ia Ibe inakuif aud (laBsinK ail laws,
' ■*4Bl'«, and ordtuaBL-os, as aroreKai<l, And
'ihal«oij slioJI and may likewite, from litneto
'Ud*. ma yon >hall jud|[e necessary, adjourn,
' rwijue or disMtlve, nil general BMenlilie* as
'Mmaid.'
■ Anil <hc jnroni aforeaard, on llteir oallts
I^hhI, briber suy, Chat hia exoelleocy Itn-
I HeKille, esq. arriied in Grenada on tlie
k«( Deevinber, 1764, and in conwquence of
I leittra paient, took upon liini
Igavetuolenl of the aanie, and Ibe utUer
' I Ihewia named. And that. In conee-
ntioned lelt«ri palenl. a
J of ill e governor, coudcII, andasaembly
» Md itltnd of Grenada was beld there in
■■•iMtor «ad of ibe year 1765.
"JkmA lllBl hit majeily, by his letters patent
vAiv ibe i^rest seal (rf Great Britain, branny
*« at WeMminsler Ihe SOth day of July, in
ibe rnoMh year of bin reign, and m the year of
I offr
lalf
a uud after Ibe \
fB oeot. in »pvuie abouli
exb <tay of MeiHemtiet then
Mieil aail paiil lo bis heirs a
mi 0)100 ajt dead uoinmodilies of Ibe yrowlb
M^pniduoa of the said islawl of Grenada ilial
AaaU be «b[>ped •>« fi-om the same, in lieu
rfMciu**nnand iRi|inet thiiies lo ibat lime
htoaaidaatnf the said island, under ibe aulho-
ttj mf ki* moil Clirisiiao majesty. Wbtch
■M Micra paiMit are in the words following:
third, by Ihe ursce of God, of
Prance, xid Irelaud, kiug, <le-
A. D. 177*. [650
ftiidf r of tbi failb, Scu. To all lo whom these
prexeittB abtll cMne, greeiiiit;: wltereas a
oerLBin imyost or cuslum nf fiiur |xiundi
and a balf in aprcic fur efery hundred weiifbl
of the C'lmiuodities of t1>e growth and produce
of Ihe ial^Dd of Borbadoes, and of ihe 1^.
ward Carribbee islauda in America, shipped
off frsm the sane, or any of ibt^iii, is paid
aud (isyahle to as, our heira and auccsssvra ;
and wltereaa the islaud of Grenada was coti<
quered by us during ihe late war, and bas
been ceded and secured to ua by the lair ireaiy
ut peace ; and whereas il is reaiouable and
expniieoi, and of ioiportaoce lo our oiber
sugar Ulanda. that ilie lilteduty sliauld lake
plaice in nur aaid islaad of Orenaila ; we have
' llHiught (il, and our royal will and pleasure ia,
and we do berahy, by Tirlna uf our prrroga-
' tiie royal, order, direct aud appoint, lliat an
' impost or cuatoni of fuar and a half per
■' cent, in specie ahull, from ftiid after ibe U(Kb
' day of ijepleniber oetl eiiauin)j: Ibe date of
ibese preaeals, he raised and paid lo in. our
'heirs and suceeasnrs, hr and upon all dead
> coinmnlilies of Ibe ti">"l'< or pro'loce of nur
' naid island of Greonda tliat aball he abipped
' off from the auae ; in lieu of all cuatuuia aod
> impost duties hiiberlo L-ulleoted upon ^rowlB
' imported and exported lolo and oiil uf the s«d
' ixlaad under the aulUoriiy of bis inuA Chris-
> lian majesty : and that llie same shall be col-
> lected paid, and leviiMl in suck manner and
' by such mcana, and under audi jMnaliics and
■ furleiiures as ibe said impost ur custom of
' tour and a balf per cent, is, aud may now be
' collected, paid, atul li'vied iu oar said island
' of Barkidoes, and our Mid Loeward islands.
" ' Aud we ilo hereby retjuire and command
' the prenenl governor or commander in chief,
' and Ihe governor or cuminnnder in chief tor
' the lime bvinic, and Llie oflicei'S of our ciia-
' luiiia in ibc aaid iaianil "f Grenaila, now and
< horealler. for the tinie being, anil all ulliera
* whom it tnav cnncern, Ibat they du respec-
' lively lake care lo collect, levy, and Iu reoeivn
' the said impost or ousiom, according in our
•royal will and pk-astire, bigniQed by these
" ■ And whereas a poll-tax was levied and
' pnid by Ihe iuhahitanla nf oik si^d island of
■ Gmiiida whilst it was UQ'ier subjection tn bis
' most Christian iRq>>siy, il is onr n>yal will
■ and pleasure thai sucb poll-lax as wau levied,
• collei'tnl and paid by the inhabitants of the
• said island whilst il was under subjeclion to
' his must Chrtsiian majesty, shall becunlinued
' lliereiB duriag our Tiiyal will and pleasure;
■ and Ibat Ibe same shall be cuUeuied, levieil,
> anil [laid to uis our heirs ami sucvcssiirs, at
' such limi-Kand in such manlier, and liy such
' ways anil means, uml under suoli |H;oBlti«s
■ and fartbiiures, and upou such terms, anit
' with aoeh privilevts and esemptionB a': Ihe
* same wa» colleeled, levied, nod paid whilst Ike
< asid islBHl was under such aii^Miun to bis
' nioslCbristiau majealy, inasmuch as itresaiHS
' ar«D»t cotttrary to the laws of Great Bntatn.
S51]
15 GEORGE IIL The Case of the Island of Grenada^ [S52
« * And that the aooount and namber of the
* inhabitants and slaves therein shall be, from
* time to time, kept and delivered iu by such
* person and persons, and at such time and
* times, and ander such regulations, sanctions,
' penalties and forfeitures respectively, as and
* under which the same were taken, kept and
' delivered in during^ the time the said island
* was subject to his most Chrisiian majesty, as
* aforesaid, in as much as the same are not con-
* trary to the laws of Great Britain.
** * And we do hereby require and command
* the present g^overnor or commander in chief,
* for the time beiniif, of our said island of
* Grenada, and the several officers of our re-
* venue, now, and for the time being, and all
* others whom it may concern, that they do
* respectively take care to collect, levy, and re-
* caj||e the money arisinip and to arise by the
* said tax, and to pay and account for the same
* to the receiver general and collector of our
* casual revenue in our said island, ^br the time
* being, according to our royal will and plea-
* sure siu^ified bv these presents.*'
** Which said letters patent were afler wards
duly registered in the said island, and were
Sublicly announced by his excellency Robert
[elvilie, esq. in the month of Junuary 1766,
immediately succeeding his arrival in the said
island of Grenada.
" And the jurors aforesaid, upon their oaths
aforesaid, farther say, that the said duty, of
four and a half per cent, before the making of
the said last mentioned letters patent, was and
yet is paid in the island of BarMdoes, and the
Leeward Caribbee islands, in pursuance or by
virtue of acts of assembly passed in the same
islands hereinaAer set forth.
*' And the jurors aforesaid, upon their oaths
aforesaid, farther say, that by an act of as-
sembly of the island of Barbadoes, in the West-
Jndies, passed in the said island on the 13th
day of September, 1663, intitied, ' An act for
* settling an impost on the commodities of the
* growth of that island,' it is amongst other
things recited and enacted as follows :
' Whereas our late sovereign lord Charles
* the first, of blessed memory, did, by his let-
< ters patent under the great seal of England,
* grant and convey unto James, earl of Car-
« lisle, and his heirs for ever, the propriety of
' this island of Barbadoes; and his sacred ma-
•jesty that now is hating by purchase in-
< vested himself in all the rights or the said earl
* of Carlisle, and in all other rights which any
* other person mayclaim from that patent.or any
* other, and thereby more immediately and par-
* ticularly hath [having] taken this island unto
' his royal protection : and his most excellent
* majesty having, by letters patent under the
* great tteal of England, bearing date the 13th of
' June, in the I5th year of his reign, appointed
* his excellency Francis, lord Willoughby of
* Parham, captain general a!id chief governor
' of Barbiidoes, and all the Carribbee isiandb,
* with full power and authority to grant, odd-
' firm, and assure to the iubabitaDlaMlbe
' and their heirs for ever, all lands, tenements,
* and hereditaments, under his maieaty's great
* seal appointed for Barbadoes and the rest of
' the Carribbee islands, as, relation being there-
* unto had, may and doth more at large appear.
** * And whereas, by virtue of the said earl of
< Carlisle's patent, divers governors and agents
' have been sent over hither with antbority to
* lay out, set, grant, or convey in parcels the
* land within this island, to such peraons as
* they should think fit, which was by them, in
* their respective times, as much as in ibem
' lay, accordingly performed. And whereas
* many have lost their grants, warrants, ajid
' other evidences for the said lands ; and others,
*• by reason of the ignorance of thoae timet,
* want sufficient and legal words to create in-
* heritances tothem and Uieir heirs; and others
* that never recorded their grants and war-
' rants ; and others that can nmke no proof of
* any grants or warrants they ever had for their
< lauds, and yet have been long and quiet pos«
* sessors of the same, and bestowed great
* charges thereon. And whereas the acknow^
* ledgment of 40 pounds of cotton per bead,
* and other taxes and compositions formerly
* raised to the earl of Carlisle was held very
' heavy. For a full remedy for all the defects
* afore related, and quieting the possessions,
* and settling the tenures of the inbabitanta of
* this island, be it enacted by his excellency
* Francis, lord Willoughby of Parham, and
* his council, and gentlemen of the assembly,
* and by the authority of the same, that, aot-
* withstanding the defects afore related, all the
* now rightful possessors of lands, tenements
* and hereditaments, within this island, acoord-
* ing to the laws and customs thereof, may at
' all times repair unto his excellency for the
' full confirmation of their estates and tenuref,
* and then and there shall and may receive
* such full confirmation and assurance, under
* his majesty's great seal for this island, as
* they can reasonably advise or desire, accord-
' ing to the true intent and meaning of this act.
** * And be it farther enacted, by the authority
' aforesaid, that all and every the payments of
* 40 pounds of cotton per head, and all other
' duties, rents, and arreai s of rents, which have
* or might have lieen levied, he from henceforth
' absolutely and fully released and made void ;
' and that the inhabitants of this island have
' and hold their several plantations to them end
' their heirs for ever, in free and common soc-
' cage. Yielding and paying, therefore, at the
* feast of St. Michael every year, if the same
* shall l>e lawfully demanded, one ear of Lidiao
* €M>rn, to his majesty, his heirs and successors
* fur ever, in full and free discharge of all rente
* and services for the future, in consideration of
* the release of the said 40 pounds, end in con*
' sideration of the confirmatioo of ell
' this island, as aforesaid, end in
' meot of hie majesty'e sreoe mad .i^
' sending to end enooiel'
* eicelleiieT. of v
Ca>»p6e/l V. Halt.
net. Ui<I do reat man nwarH lliercar
111 (iiruinuc)i aa nnthing^caiiilucelh more
« Bod pTas|)crity ol' >ny jilBCi-, nnil
i<io of errrj txti^Xc jicrson lliereio,
be public revenue tlieteiit* may hf
ieMur« [iru^rtinned lo the public
s aod expeiu^es ; and bIsa well wel^ih-
[be great ch»r^;«s Ihat lli^re miisl be of
' til]' IB the malnliiiniiiif the honour and
y of bit niaJMly's aiiilinrity bere ; ihe
le meeting i>l ibe ivsiiunii ; tbe oixfti at-
T ot'thccauucil ; ibf re|iarationorihe
lb« buililiDff a sessionB- haute and a
1 aad all other public cbargea Jnciim-
'«gA«eriiiiienl; do, in conaideralioD
ite and grant unto his majesly, hia
' dniire your excellency 10 accept
ir ^rauU : and wc bniiibly pray your
J' ibal It luay be enaclnl, and he ll
J hia excellency Francis, Inril VVil-
J if Parham. captain eeoeral and
rnnr or this island ol' Barbndocs,
^^___ !t the Carribbee ialnnds, and by and
■ oiah Ibe cunieot of ibc council, and the gea-
■ '-'"«! 'if ibe oa*emhly,repr«reiilatiresof'lliig
iUnd, and by authority of the tame, that an
.>l<Di( or cuttom be, I'rnm and aflcr publica-
' n herrot', rained iipi>n the native comrandi-
11 uf ihiti inland, alter Ibe pro|K>riii>ng and iri
. -iiiat!! and form as is heteuniT «et down nnd
.^'g>oiotrd, llialia loaay, upi>n all dead oim-
.xliiiM of ibe ffrowih nr produce of Ibis
land, tbat (hall he Hbipped nff '
' |>aid t
if catcreiftn liird the king, bia
id a half
I lj< inmrs albreaaid, upnn their oatha
.iiIkt My. that, hy on act of aa<
: ' iilaod of Si. Christopher, in tbe
I'liaavd in tbe said island, in tbe
l-uid 1737, intitled, < An Act lo
i;i>ods and commodiliea of the
<< [iiiHluoe uf Ihe late Frencb part
< ^ <<i'l fit Hi. Climtnpber, nbirb ar« or
••■; 11- •liippeil olT from Ihe snid island, lo
K iwymanl of ihc four and n half ]ier cent.
M«, Mit lu aaoertain di nhat places all ihe
■to of four and a hulf per cent, sbull be
* ll ia, BiDangut other ihinfft, recited and
idHl BB followB ; ■ tVherena id and hyan act
r ntulc uf the i;eneml couDcil and ^enernl
■entity of ib« Leeward Carribbee islands,
catlnl or known by the names of
r Noil, Ki. Chrialnpher. Antigita,
1, msdc! in or about tbe var of
, and entitled. An Act liir ael-
m tbe cumniudilles of tbe
LcBward Carribbtc islands,
enttoffl of four puunds and
i»r»»wy hntTdrcd weight of
. ni'lei
ard«
A.U. 1774. [254
' snTereiga lord Cbarles Ihe 9d, then king of
England. Scotland, France, and Ireland, and
to his heirs nnd succennra for erer. aa in and
by Ibf same act or slatule, relation being
Ihereunlo had, may more fully and at large
appear.'
" < And uhrrcaa aince the making of tbe aaid
'alatuieilowil. inand by ibelatetrtalyorpeace
' and friendship concluded at Utrecht helfteeo
' tbe two cronns of Great Britain and France,
' an enlire ceasion was made hy tbe moat Chris-
tian king Lewis tbe 14ih to our Inle sovereign
■ lady Anne, queen of Great Britain, France,
' and Ireland, and lo her crown for ever, of all
Ihat pan of the island of St. Christopher for-
merly belonging In the crown of France ; so
tb at I be same late French pari of tbeaaid island
' of Nl.Chrisiopber is now become parcel of ibe
realm of Ureal Britain, and is under the anle
dominion and goveramenl of tbe crown of the
'" Andwherea»somedoubtshaTearisen,whe-
' Iher ibe said Inie French pari, so yielded np bb
' afbresaiil lothe said crown of Great Britain, be
' subject in the payment of ihe afor^aid duties
I of four and a haif per cent, so as aforeaaid, in
and by the said reciled act, given and gi-anleil
' lo our aaid late sorereisn lord king Charles
the ad. hia heirs and successors ; fur avoid-
ing, tlierefure, all disputes and conlroversiei
ivbicb may for ihe future arise within th«
samo island, touching or concerning ilie pay-
ment of the same duties, we, your majealy'a
' most dutiful and loyal subjecis John Hart,
' esr|. your majesty's captain general, and go-
' vernnr in chief of all your majesty's Leeward
' Carrjhbce islands in America, and Ihe council
and assembly of tbe said island of Si. Chris-
lopber, do humbly beseech your iDa}esty that
it miy he eoacled and declared, and it is here-
' by enacted and declared, by the king's moat
' excellent majesty, by aud with tbe advice anil
consent of the captain general and gnvernor
inchit^of ihesaid Leeward Carribbee island*,
in America, and the council and assembly of
the said island ofSt.Cbrialopber.and hy the
' suibority of the same, Ibal all and aingutar
Ibe goods and commodities of the growth and
' pi-nduce of the said lale Frencb part of tba
said ialand of St. Christnpber, and which at
' ibia time are, or hereafter aball be, shipped
' off from tbence, in order to be carried lo any
' Dlbei port or place whalsoeTer, ore, and for
' ever alttr shall be, subject and tiablr, and the
same goods and commodities, and every of
' them, are hereby made auhject and liable, to
' Ihe payment of tbe afnressid duties and cua-
' torn 9 uf lour pounds and half a pound per
' cent, in specie, lo your most aacred niaiesty,
' your heirv and successors, in such maimer
' and sort aa Ihe goods and commoililiei of the
' growtli and produce of Ihat part uf tbe said
' island known and calle<l hy tbe name of Ihe
' English part thereof, have beretotiire and
' bilberio been subjecleil and linhle unlo by
force and virtue of llie aliovu reriled act or
15 GEORGE III. The Case of the Island of Grenada^ [S56
* pointed : that is to my, Qpwi all commodilktf
* of the growth or production of this ialaiid tbtt
' shall be shipped oflTthe same, aball bejpud to
< our soveretii^n lord the kmgf, hia beirt and
< miccessors for e? er, four and a half in ipccie
* for every [fiye] score.'
" And the jurors aforesaid, upon their oaths
aforesaid, farther say, that by an act of at*'
sembly of the islatMl of AMiffoa, in the West
Indies, passed io the said island on the 19th
of May, in the year of our Lord 1668, en-'
titled, '* An Act for the settlement of the cos-'
* toDi or duty of four aad a half per eeot,' it
is, anoooKBt other things, recited and enacted'
as folloivs: ' Whereas by reason of the late
' unhappy war which arose betwixt bit royal
< nnjesty Charles the second, king of Great
< Britain, Franoe, and Ireland, dec. and the
< moot Christian kioff, in Prance, as wcM ai'
' the states general of the United NetherlHds«'
* sereral of his majesty of Great Britain hb
' territories on this side the tropic, became mlK
* ject (through conquest) unto the said Frencli
* king and his sabjects ; and, amongst others,
* this island of Antigua also waa so sohdeeii'
' by Monsieur de Labarr, lieutenant general bf
* sea and laad to the said French king, being as-
* sisted by the Cannibal Indians ; by mcanr
' whereof all the lands within this island be-'
* came forfeited unto his majesty, &e. as bj an
* act of this country, bearing date the 10th
* day of April lant past (reference being there-
* onto had) may more at large appear. Knoir
*ye, that for and in conmderation of newgrantr
' and confirmation of our said Imids, um&r tto
* groat seal appointed for Barbadoes, and the
* rest of the Carribbee islands bv lits exceHencj
* lord Willoughhy of Farham,'(Sec. we do give*
* and grant to his said majesty, his heirs and
* succesBom for erer, and most humbly desire
* your excellency to accept these our grants :
' and we do humbly pray your excellency
* that it may be enacted, and be it enacted, by
< his excellency lord Willougliby of Farhant'
' captain general and chief eni^mor of Bar-
* badoes, and the rest of the Carribbee iaiandi,
* and by and with the advice and cousent of the
* council, and gentlemen of the assembly, re-'
' presentatives of this island, and by tM an-
* tiiority of the same, that an impost or enstem
* l)e, from and after the publication hereof,
* raised upon the native cooNnodities of this
* island, after the proportion and in manner
* and fiirm as above set down, that is to say i
* u|ion all commodities of the growth or pro-
* duction of this island, that shall be shipped
* off the same, shall be paid to our sovetviga
* lord the king his heirs and successors rar
* ever, four and a half in specie for every five
*8core.'
** And the jurors aforesaid, upon their
aforesaid, farther say, that a cuatoB
was established in the said island of Ofif"
and proper officers aptninted tiiiieiB
«' And the juren afai— ^■'
afofesaid, fhratrsa-^
S55]
«« And the jurors aforesaid, upon their oatiis
aforesaid, farther say, thai by an act of assem-
bly of the island of Nevis, in the West Indies,
passed in the said island in the year of our
Lord 1664, entitled, * An Act for settling an
* impost on tlie commodities of the growth of
* this island,' it ia, amongst other things, re-
oited and enacted aa fbltows:
<< • Wliereaa our late sovcreij§^ lord Charles
« the 1st, of blessed memory, d^, by his letters
* patent nnder the great seal of England, grant
« and convev unto James, earl of Carlisle, and
< bis heirs ror ever, the propriety of this isUind
< of Nevis ; and his sacred majeat^ that now is
* having by pnrchase invested himself in all
* the rights of the said carl of Carlisle, and in
< all other rigfhta which any other person may
< clahn from that patent, or any other, and
« thereby more immediately hath [having]
* taken this island and the rest of the Carribbee
* islands into his royal protection : and his most
* excellent majesty having, by letters patent
< under the great seal of Mgland, bearing date
* the 19th da^ of June, in the 15th year of hie
* reign, appoinled his excellency Francis, k>rd
< Willoughby of Parbam, captain general and
< chief governor of Barbadoes, and the rest of
< the Carribbee islands, with foil power and
* aothority to irrant, confirm, and assure to the
< inhabitantB or the same, and their h«rs for
* ever, alt lands, tenements, and hereditaments,
* under his majesty's seal appointed for Barba^-
< does, and the rest of the Carribbee islands, as,
* relatinn being thereunto had, may and doth
' more at large appear.
«* * And whereas, by virtue of the said earl
^ of Carlisle's patent, divers governors and
< agents have been sent over hither with ao-
< thority to lay out, set, grant, or convey in
* parcels the land within this island, to such
* persona as they should think fit, which was
* by them, in thenr respective tinnes, as much
< as in tliem lay, accordingly performed. And
« whereas many have loot their grants, war-
« rants, or other evidences for their said lands ;
< and others, by reason of the ignorance of
« those timea, want sufficient and lawful words
* to create iehcritanoes in them and their heirs;
< and otiiers that never recorded thehr grants
* and warrants ; and others that can make no
< proof of aay grante or warrants they ever
< bad for their lands, and yet have been long
* and quiet possessors of the same, and be-
* stowed great charv[es thereon. And we do
« humbly pray your excellency that it might
' be enacted, and be it enacted, by his exwl-
* lency Francis, lord Willoughby of Parbam,
* captain general and chief governor of the
< islanil of Barbadoes, and the rest of tlie Car-
« ribbee islands, and by and with the advice and
* consent of the council and gentlemen of the
< assembly, representatives of this island, and
« by the authority of the same, that an impost
< or custom be. from and after the publication
« hereof, raised upon the native commodities of
* tbia isUnd, afVer the pro|>ortion and in manner
* and form as is hereafter set down and ap-
&7]
Campbell 9. HidL
A. D. 1774.
[95»
Bhtaia, oa Ibe third day of March, 1763, uur-
chised « ccttain plantaiion in the said island
of Grmada, of the French iohahitants, in pur-
fuaoee of the said articles of capikulatioo, and
•f the said treaty of peace, as many other
BhtUh subjects had then, and since have, done.
** Aod tlic jurors aforesaid, a|)on their oaths
Araaaid, farther say, that certain sugars of
ike phiatilTs, and of the growth and produce
•f the said island of Grenada, and made from
4* Ike itiaintifrs said plantation there, sulise-
faeat to the granting and registering of the
UkJ letters patent of the SOth of July, 1764,
■ere exported from thence. And Ithat the
■onici IB the declaration mentioned to he had
mi reoeiferi by the defendant to the plaintifTs
BR, were paid to and received by the said
WiHiam Hall, in the said island of Grenada,
IS afciesaiil, as and fur the duly oFl'our and
a balf per cent, imposed by the said letters
ptratoi' the 30th of July, 1764, he, the said
Williaa liall, being then aud there the col-
keior ol* the said duty, for the use of his ma-
jcrty. And that the said William Hall hath
ist paid the same over tu the use of his ma-
JM^ ; but, on notice ol this action intended to
he mvght, hmh, by and with the consent of
bis tjfsty's atlui ney general, kept the same
■ bia bands, for the purpose of trying the
^nrttisn arising upon the mcts ; and lor which
Ibis action is bniusrht.
** But whether upon the whole matter afore-
■ii, found by the said jurors, in manner afore-
Hid, ibi? said impost or custom of four and
•se hall' per cent, in s|>ecie, fur and upon all
kai commodities of the growth or produce
rf ibe said island of Grenada shipped off for
AssBine, was lawfully imposed or not, the said
jfltia am altogether isnorani, and pray the ad*
lise of the Court in the premisses.
" And if, upon the wliole matter afurcMid,
lend by the said jurors, in manner aforesaid,
it Aafl appear to the Court here that the said
JBpaat or custom of four and a half per cent.
is ipecie of and upon all dead commodities of
tW growth or produce of the said island of
Gienada shipped off from the same, was not
bvfoUy imposed, then the said jurors, upon
Ibeir oaiha say, that the said William UaU dkl
mitttakm and promise, in nunner and form
M ibe said Alexander Campbell, by his said
dsdaraiioo, baib declared agaio*4 bim ; and
ibcy 8»eas the damages of tM said Alexander
•a that occasion, besides bii cntu and charges
Isid omt b^ hiio about bis suit in tKi« behalf,
Is 5/. and tor such c^ts and charges 40j.
** Bat if, uiKMi the » tio!e ma iter found by
ibe Mid jurors, it ai^pe'^r to ihe Court here,
that Uie said impost or coii!orti f^f Vmu and a
kaf per ceol. in specie of zui opoo all dead
of the ;;roiiih or cr^nltic? ol tbe
of Grenada, SMip(*cd off from the
lawfuil% imposed, then the said
tbcir'oaiba, say, that the said
dfal Bol promise and ooderuke
V mdhtm m in bis pica aUcdgad."
m
This came was first argued for the plaintiff
by Mr. Alleyne, upon tlie above special verdict,
in Easter term, 1774, in substance nearly to
the effect following.
Mr. dikyni^^My lords, if the wishes of go-
vemment, ur professional rank, could influenco
the decisions of this tribunal, 1 should now,
considering the cause, and the dignity of those
advocalea who support it against me, adopt
the example of the Roman or^itor, and begin
witli recommending my client to tbe grace and
protection of his judges ; but experience bar-
ing taught me that here the genuine merits of
a cause are the judicial guide, 1 gladly follo«r
the practiee of an English court, where the
laws are heard by their own recommendation ^
and rise in humble confidence, of counsel witb
the nUiotiff, who, through me, aolicils }'Ottr
lordships' justice in hio behalf.
This long expected and truly interesting
cause now comes before the Court upon a spe-
cial verdict, found at the trial of the general
issue before your lordship, on an action of
* indebitatus assumpsit;* nominally, indeed,
brought for the recovery of an inconsiderabi*
sum of money ; but substantially, to take tbo
opinioo of your lordships upon a question of the
first magnitude. The verdict, when relieved
from tbe embarrasament of form, reaolvea it-
self into tbe following case.
The conquest of the island of Grenada, in
the West Indies, was one among the mwny
gk»rious achievemeiita of tbe last war. It wao
surrendered to the troops of bis Britannic fDa*
jesty, under general Moocktoa, on tbe 7tb of
Pebroary, 1769.
Tbe articles under which it eapitnfaled ac-
knowledge the inhabitants from thenceforth as
Brilish subjects ; require them to uke the oath
of altegianoe, as a redprocal doty resulting
from their adoption as sucii ; secure to them
the enjoyment of their religion ; assore ibi-m
of protection, in tbe same manner as the colo-
nies receive it ; with whom, by this surrender,
and tbe cenwquent reception into the privi-
leges of British sulgeds, they are placed upon
an equal foot in the possession of the common
libertT ; and permit them to dispose of their
own lands, provided it be to Britirii subjects.
On the general traaty of peace, signed at
Pteis, Fcbroary the lOtb, 1763, this island was
ceded by bis Christian nMJesty, in full right,
to tbe crown of England, under stipulations
similar to those on which tbe province of Ca-
nada waa ceded ; and in general confirmatory
of the articles of capitoUtion. And in this
irsaty his majesty engages, in tbe roost ample
manner, for the' free exerdse of tbe Koman
Catholic religion ; aud giv«s hi« French sub-
jects liberty to sell their goods and retire.
On tbe 7 th of October foUowinir hi« majestyp
to make gof^d, in the fullest manriir, tiiow; en-
gagements, upon the faith of which iIm isUnd
bad surrendered, and to p«rf«ir« at tbe same
liose tbe oonditioos of tbe treaty of pf a', e, bod
fanhcr^ with » view to tbe better pesplin; and
8
S59]
15 GEORGE IIL The Que of the Island qfGrenadi
caltiffttingf of bis said island, was pleased to
issue his royal proclamation, inviting nis Britiiib
subjects to colonize in his new acqnired domi-
nions, and, as an encouragement, assuring
them and the inhabitants in general already
there, of the benefit of the English laws and
constitution : and, for that purpose, declares to
this efiect; reciting that it will greatl;^ con-
tribute to the speedF settling of his said new
gOTfrnments, tnat his loving subjects should
be informed of his paternal care tor the secu-
rity of those in their liberties and properties
who were or should become inhabitants there-
of ; and farther, for the effectuating of such
intent, ** We have thought fit to publish and
declare by this our proclamation, that we
have, in our letters patent under our great
seal of Great Britain, by which the said go-
vernments are constituted, given express power
and direction to our governors of our said co-
lonies respectively, that so soon as the state
and circumstances of the said colonies will
admit, they shall, with the advice and con-
sent of the members of pur council, summon
and call general assemblies within the said
governments respectively, in such manner
and form as in those colonies and provinces
in America which are under our immediate
government'*
Having thus declared his resolution to exe-
cute the engagement in their favour by this
first step, as early as possible, of calling as-
semblies as in the colonies and provinces in
America, under his particular protection, and
his inclination and desire to manifest his pater-
nal care of his subjects ; he proceeds to shew
the extent and justness of the accomplishment
of his design, by a full and particular declara-
tion of the nature, powers and design of these
assemblies when called, by adding : *< and we
have also given power to the said governors,
with the consent of our said councils and the
representatives of the people so to be sum-
moned as aforesaid, to make, constitute and
appoint laws, statutes and ordinances, for the
public peace, welfare and good government of
our said colonies, and of the people and inha-
bitants tliereof, as near as may be agreeable to
the lawsof Enghmd.** Here tfien they saw the
full idea of their becoming British subjects
(which they became at the surrender) by this
clear and perfect image of the beauty, order,
and freedom of the British constitution, im-
parted to them, and declared to be the model
and foundation of their own. '
But as it might happen that this benefit,
thus pledged and confirmed to them, could not
be immediately communicated in its full ex-
tent ; his majesty provides thos ; ** in the mean
time, and until such assemblies can be called,
all persons inhabiting, or resorting to, our said
colonies, may confide in our royal protection,
for the enjoyment of the benefit of the laws of
our realm of England.*' So that the enjoy-
ment of these laws was to anticipate even the
calling of the assemblies $ which was not to be
a eoanaencemtat jpf Ihur frtedooy nor of their
[9B0
exercise of the ri|^ts of Britisb sokgecta, nor
of their participation in the British comtitu-
tion; but one act, most important and illus-
trious indeed, of that freedom, those rights,
and that constitution already in their poi*
session.
And it is material to conaider what is the firrt
step which the governor is to take upon his ar-
rival in the island, for the purpose before ex-
pressed, of giving the inhabitants the benefit of
the laws of England. It follows iromediatelyy
'* We have given power under our great seal to
our governors of our said colonies respectively,
to erect and constitute, with the advice of our
said councils respectively, courts of judicature,
and public justice within our said colonies, for
the hearing and determining all causes, as well
criminal and civil, according to law and equity |
and as near as may be agreeable to the laws of
EngUnd."
Here then the laws of liberty and of Eng-
land are enthroned in the island as soon as ever
the delegate of the executive powers arrives
there, and he is sent to give them efled
amongst tliose who were already entitled to
them as British subjects, and both in criminal
and civil causes, both in strict law and liberal
equity ; in the whole, and in the great mem-
bers and distinguishing distributions, both in
the objects and the manner of spplying them,
the laws of our constitution, the laws of Eng-
land are to prevail, and, as near as may be con-
sistent witli local circumstances, are to bo en-
joyed as the general privilege of British sub-
jects, there as bere.
Conformably to these repeated acts, and in
prosecution of the same intention, on the S6lh
of March 1764, a second proclaoMtion was in-
sued ; having the same object, the establishment
of the colonies, and declaring the same views
already wisely adopted, and firmly engaged as
to the means of attaining and perpetuating that
establishment ; and reciting the great Mnefit
which will arise to the commerce of the king-
dom, and to his majesty's subjects in general,
from a speedy settlement of the new acquired
islands, of which this of Grenada is named the
first. It gives directions for the survey of thn
lands, the distribution into districts and parisbeiy
analogous to the English divisions, the cultuin
of the various produce of the country, the ap-
portionment of the ground into due lots Ibr thnt
purpose ; and in general recognizes the inhabi-
tants as his majesty's loving subjects, and pro*
vides such means as were judged expedient for
their necessary support and defence, their in-
temal order, plenty and happiness, previous to
the completion of tbese by the ei\)oyment of tho
laws of England, which, as they bad in righ^
they were to have speedily in possession.
In further prosecution of this design OD'IIm
9th of April 1764, his majesty was pleased io
grant his royal letters patent to general Mel-
ville, constituting him captain-general and go-
vernor of the new islands, Grenada, the Orean-
dines, Dominica, St. Vincent, and Tobago.
Thii patent is set forth verbatim in tho rt^
Campbell v. Hall.
» 10 uke KDi] BilmLoiiler (be oaths of allpsi-
uw kod sunivroiicy ; ^reii outliority to tlie
fiWBOT, and rwjuires anJ oomniinds liiiu to
munoti an amemtily, <lMcril>es the manlier of
teliMi by the freehoUers, and Iha9 called
a>rs loiit ur«pre»eniatiT«i; and (0);Hher
lh« |[«*mior and euuntil lo be the l^ia-
hnMoflbecDutilfv, and lo make laws aa Dear
n poMiUe to tlie [■»i of England, nilh the
Mual (iTOviuoa lliat ihey shall be roid if nol
aftawMl by hia Rinjetly within a limited lime;
m4 Iiarc4ty ii Aoatly egUblishnl in Grenada a
I— ililiilioo. JD priocipk and form, in the de-
rifn of the wbule, in tbe dUpoaiuon of the
pana, in Iheir reapeclite runclions and joint
MMMioa*, on e